Freedom of Information under attack – you’ve got until 20 November to respond

Janet Downs's picture

Remember the MPs’ expenses scandal? Freedom of Information exposed this misuse of taxpayers’ money. And the two year battle by School Week’s editor Laura McInerney to get the Department for Education (DfE) to release free school application forms? Wouldn’t have been possible without Freedom of Information. Freedom of Information has resulted in articles on this site. These include Emma Bishton’s campaign to discover the cost of two Suffolk free schools; Henry Stewart’s finding that sponsoring academies is not the best route to school improvement; my discovery that the DfE had received no complaints about ten of the Trojan Horse schools. And without Freedom of Information we would never have learned that the surveys used by the then Education Secretary Michael Gove to underpin his claim that UK teenagers were clueless about history came from such robust pollsters as UKTV Gold and Premier Inn. Such revelations rankle. And politicians are nervous about the public finding information politicians would rather remain private. Moves are afoot to make submitting FoI requests a little more difficult. It’s too burdensome, it’s alleged, and costs too much (never mind that it might actually save public money if inappropriate or wasteful spending is exposed). It could have a chilling effect on advice given by civil servants to ministers, claimed Justice Secretary and Lord Chancellor Michael Gove (not so, said the Justice Select Committee in 2012, existing provisions in the Act can protect full and frank advice). It’s used by journalists to ‘generate stories’, complained the leader of the Commons Chris Grayling. It’s clear such story generation must be curtailed. Journalists and others must be prevented from digging the dirt. The Government has started an ‘independent’ commission about the future of the FoI Act which has called for evidence. Responses are via the Ministry of Justice whose boss has said he wants to ‘revisit’ the FoI Act. It's unclear, then, just how independent the commission will be. As Private Eye points out (number 1405, 13 November 2015), ‘the mood music is not encouraging’. The Eye notes how two ‘former cabinet ministers with little interest in the full truth emerging – Lord (Michael) Howard and Jack Straw’ have been appointed to the commission but no campaigner for more openness. Gove has admitted that Straw has ‘been very clear about the defects in the way in which the Act has operated.’ Not very ‘independent’ then. It’s important, therefore, for those who believe in transparency to respond to the commission’s call for evidence. 38 Degrees has made this easier by putting the questions into plain English and compiled them in an easy-to-complete survey. But you’ll need to hurry. Time is short. You’ve only got to the end of Friday 20 November.

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mistemina's picture
Mon, 16/11/2015 - 12:58

Fully support Janet. We do need to hurry. Time is short. Enter the 38D Easy-to-complete survey. It is very good. I had a small part in the feedback.
We in Bucks have had huge success using FOIs in exposing lies, deceits, etc.

Jane Eades's picture
Mon, 16/11/2015 - 15:19

The Department of Education already uses all the powers it has to avoid responding to Freedom of Information requests. There has been a big increase in the opt out which is "the department plans to publish the information".... (at some time in the future!).

My last FoI request about costs, no. of pupils etc about 'free' schools was refused until I appealed and went to the Information Commissioner's Office. The final answer, which apparently needed extra time to prepare, referred me to 7 different web links. When I looked at the different lists it would take a huge amount of time to combine the lists. Some had the URN for the school, some had one name for the school but a variation on another list. The upshot was that sorting the lists into one could only be done after considerable work to standardise the way in which the school was recorded.

I am left with the feeling that either the Department is completely incompetent and is not monitoring 'free' schools, or that they are using any trick they can to avoid answering.

Barry Wise's picture
Mon, 16/11/2015 - 15:51


My recollection of the MPs' expenses scandal is that it wasn't freedom of information laws but a mole angry at the under funding of the troops in Afghanistan who exposed the appalling misuse of public money.

Nevertheless, you use the act effectively!

Guest's picture
Mon, 16/11/2015 - 21:35

Barry - you may be right but once the initial information was out the press went to town using FOIA requests, which led to the deep moral outrage amongst the general public.

Jane - I have used FOI requests direct to a school. They and the LA involved tried to pull the defence that to reveal the information would damage their competitive edge and breach company confidentiality. Like you I appealed/complained to the ICO who ordered that the data be sent to me.

I strongly recommend that people complete the 38 Degrees survey (which is a direct link to the government consultation) and also advertise it to their friends and colleagues.

Interestingly, Labour appear to be cherry picking what to support and what to attack regarding government proposals to substantially dilute the scope and rigour of the FOIA. That is to say, they have attacked plans to exempt Universities from the Act.

Sarah's picture
Tue, 17/11/2015 - 12:08

I absolutely support the right for citizens to challenge public bodies to provide information about how decisions are made and how public money is being spent. I deplore the behaviour of the DfE in particular of doing everything in their power to avoid publishing information which we have an absolute right to see and which they readily have at their disposal involving minimal administrative burden.

However, what I don't think is generally understood is the sheer volume of FOI requests coming in to public bodies and the amount of work involved in responding to them. The same question may be asked by multiple journalists in slightly different ways even on the same topic requiring bespoke answers which take time (and therefore public money) to produce. It is frustrating to see journalists scatter-gunning FOI requests for example to every single local authority which lead to significant workload. Sometimes the questions are trivial eg how much money have you spent on exorcism, Christmas decorations etc - the story might not even be published or be a couple of column inches hidden within the paper. Public bodies are not staffed to a level where they can easily absorb this sort of workload - given that they are being told to cut back office functions and automate everything. The other major source of FOI requests is from students seeking an easy and cheap route to undertaking research.

I don't think that lazy journalism or research was really the intention of FOI and if it is going to continue in it's current form it needs to be resourced to ensure appropriate levels of transparency and challenge can be sustained.

Jane Eades's picture
Tue, 17/11/2015 - 15:21

It would be possible to reduce the need for so many FoI requests if Government and local authority departments thought about how to make information more readily available in the first place. Many of the FoI requests are ones which should be readily answered by a search on the relevant websites. However, there seems to be a recent predisposition to make it more difficult, not easier.

Sarah's picture
Tue, 17/11/2015 - 18:15

A huge amount of information is published. But often the requests are quite specific eg particular time periods or across specific geographical areas meaning that the raw data needs to be disaggregated, analysed or presented in a particular way to make it easier for the questioner to make the specific comparisons they are interested in. Often the questions need answers from multiple parts of the organisation so there is now a whole industry of data management officers and admin staff chasing different parts of the response. On the whole it's a complete waste of time.

Guest's picture
Wed, 18/11/2015 - 10:34

From what is being indicated in your comments I suspect that some public bodies do not apply the Act with sufficient accuracy which belies a flawed understanding of the Act. I suggest this because providing a request is valid then only the relevant raw data need be supplied. There is no requirement for that data to be analysed on behalf of the requester. That is their responsibility. Additionally, Part II of the Act affords many exemptions to the provision of data. Furthermore there is a financial cost implication tied to meeting a request and if this is exceeded then the request can be turned down or a the requester advised as to what they must contribute to obtain the data.

mistemina's picture
Wed, 18/11/2015 - 15:59

Thank you Guest, we now understand the exactitude of the Act. I have come across this myself.
However, the spirit of the Act is to provide information. A request under FOI Act immediately means the requester needs clarification and wants information to verify the facts before issuing a challenge.
We can all agree on democratic, accountable Governance.
Therefore, the information giver has a duty to transparency to supply data and their analyses on behalf of the requester.
If they do not, then they want to hide something!

Guest's picture
Wed, 18/11/2015 - 18:52

John - sorry but I disagree regarding your two final sentences. The FOIA is about ensuring a level of transparency through which people can obtain information about public bodies and where appropriate use it hold them to account. It is not and never has been an avenue to provide information/data analysis. Providing the request is valid in the terms of the Act the requester gets the information they seek and thereafter it is up to them to analysis and use it as they feel appropriate.

Sarah's picture
Wed, 18/11/2015 - 19:55

Just to give an example of why analysis is often required. An authority may be asked to provide a list of all schools with between 30 and 100 pupils. That specific piece of information will have to extracted from the data which lists all schools and their current roles. More likely the questioner will want that information over the last three years which means doing analysis on historical data sets. Usually there are multiple questions involving very specific subsets of the raw data held.

Guest's picture
Thu, 19/11/2015 - 08:03

Sarah - Bear with me here but I perceive what you are describing as identifying and filtering information/data and not analysis. The vast majority of information/data is input and held on databases and as such by selecting appropriate filters the database produces the requisite information. This is not the same as analysing it :-)

Janet Downs's picture
Thu, 19/11/2015 - 08:28

sarah - I understand there will be times when analysis is required. For example, one of my FoIs asked for the names of academies which had changed hands within a particular timescale and costs. This presumably have required someone from the DfE consolidating the data (in this case the costs were not released due to alleged commercial sensitivity).

But in the example you give the LA could just have directed the questioner to the DfE School Performance Tables for the last three years. These can easily be searched under LA, primary schools and/or secondary schools, school characteristics. This shows the number of roll in each school in the area in the year concerned. If the questioner also wanted info re, say, FSM, FSM6, EAL and SEN pupils, then this info is also contained in the same Performance Tables together with test and exam results.

Guest's picture
Thu, 19/11/2015 - 10:59

Janet - with respect what you describe is identifying specific information/data. There is no requirement to manipulate it to arrive at conclusions or interpret it and it sure does not fall into the category of expecting or asking DFE to undertaken analysis.

Jane Eades's picture
Thu, 19/11/2015 - 10:24

However, if the department has that analysis, surely they should then provide it. In the case I provided on 'free' schools, surely in some part of the Department for Education that information should be held in one place. It should also be the case that a responsible Government is carrying out analysis on the data it helds and, if requested, that analysis should be available and the conclusions open to challenge. If the analysis is not being carried out, then is the Government doing a proper job of scrutinising its own policies. I agree that there are some trivial and time consuming requests but until MPs stop asking stupid questions, should be deny the same right to the wider public?

Janet Downs's picture
Thu, 19/11/2015 - 12:41

Guest - I think we're tripping up over the word 'analysis'. You're correct that strictly speaking analysis means to take raw data and study it to form a valid conclusion. I was using it in the sense of filtering data. Strictly speaking that's incorrect but I was taking the meaning of 'analysis' as implied in Sarah's post and responded accordingly.

Guest's picture
Thu, 19/11/2015 - 12:53

Janet - My position on the use of term 'analysis' is based on Sarah and Jane's contributions which seem to me to be stretching the use of the term beyond its meaning, and hence I was trying to clarify and differentiate between filtering/targeting data/information and analysis. Thus rather than tripping over the term my motivation is to avoid misunderstandings arising from inaccurate usage, which is more than vexatious pendantism.

Jane Eades's picture
Thu, 19/11/2015 - 13:26

I used the word analysis because that is what the Department should be doing with the information. If it is unable to provide the information I requested in one file, then I can only assume that the Department is not doing the analysis it should be doing. I was not asking for an analysis, I was asking for the data. If the Department itself has to refer to 7 different spreadsheets then it is not monitoring nor is it analysing.

Barry Wise's picture
Thu, 19/11/2015 - 16:28

In his guidance to public bodies, the Information Commissioner says:

If a member of the public asks for information, you only have to provide information you already have in recorded form. You do not have to create new information or find the answer to a question .........

- which seems to back up what Guest is saying.

Guest's picture
Thu, 19/11/2015 - 18:04

Jane - I understand your sense of frustration but while the Act enables us to request information this doesn't extend to asking for for disclosure of a public bodies - in this case the DFE - internal analysis. It would also be accurate to say that because a person can't obtain the analysis does not mean that the department is not undertaking the analysis. In my dealings with FOI requests it has always fallen to me to sort the information/data and then do my own analysis.

Barry - what you say reflects my experience of making requests. Also like others there have been several occasions when I've had to refer a refusal to the ICO and twiddle my thumbs while they (a) decided whether the public body's refusal was legitimate, and if so (b) for the ICO case officer to take the body on and get the information. On more than one occasion the ICO department has advised the body involved that they would refer it the tribunal (including their costs if the body lost). I suspect that Janet and others on here can attest to similar experiences.

agov's picture
Fri, 20/11/2015 - 10:37

18. The term “dataset” is defined in subsection 11(5) of FOIA. This definition contains a number of elements.

- Not the product of analysis or interpretation
25. The term “factual information” is then qualified by two further criteria; firstly,

(b) is factual information which—
(i) is not the product of analysis or interpretation other than calculation …

26. This suggests that the definition is limited to ‘raw’ data that has been produced or obtained by the public authority, rather than value-added data that has been produced by analysis or interpretation.

28. Furthermore, the phrase “other than calculation” means that, for example, if expenditure data has been collected at the level of sections within the departments of a public authority, and it is then added up to show expenditure by department and by the authority as a whole, or even to show the percentage of the total expenditure by each department, this does not take it out of the definition, since totals and percentages are produced by calculation and they are inherent in the data itself.

29. However, it is likely that a table in a report proposing how resources should be allocated to departments in future years, based on the authority’s policies and priorities, would not be factual information because it is produced by analysis and interpretation, rather than simply recording and making calculations with factual data. The analysis and interpretation depend on factors that are not inherent in the data itself.

- Official statistics
32. The second qualification to the term “factual information” concerns official statistics:

(ii) is not an official statistic (within the meaning given by section 6(1) of the Statistics and Registration Service Act 2007) …

33. Official statistics, as defined in the Statistics and Registration Service Act 2007, are not datasets within the meaning of the dataset amendments to FOIA. However, the underlying raw data used to produce official statistics could fall within the definition of a dataset, assuming that the other criteria were satisfied.

Materially altered
34. The final part of the definition is that “all or most of the information in the collection”,

(c) remains presented in a way that (except for the purpose of forming part of the collection) has not been organised, adapted or otherwise materially altered since it was obtained or recorded.

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