With the number of freedom of information requests increasing and the government’s transparency programme kicking in, reports in the press have highlighted the difference in approach that local authorities are taking to deal with the expense arising from these initiatives. These range from a refusal to comply with the government’s calls to publish data to a publish all approach – in this post, we consider these two opposing approaches in more detail.
Existing publication requirements
In addition to responding to individual requests for information, clause 19 of the Freedom of Information Act 2000 (FOIA) requires all public authorities to have an approved publication scheme and to make certain information available to the public as a matter of course via that scheme. For more information, see Practice note, FOI: model publication scheme. However, despite this requirement there is still a wide variation in the amount of information that local authorities publish and make available.
Draft transparency code and Protection of Freedoms Bill
Such disparity is likely to lessen when the draft code of recommended practice for local authorities on data transparency and the Protection of Freedoms Bill come into force as the minimum burden on local authorities is likely to become more onerous. The draft transparency code, which will have statutory force under section 2 of the Local Government, Land and Planning Act 1980, will require local authorities to publish certain information relating to the discharge of their functions and other related matters. The code is intended to complement FOIA and the existing data protection regime.
Part 6 of the Protection of Freedoms Bill also sets out a requirement for local authorities to publish information that has been requested if it is or forms part of a dataset of information held by the local authority. This extends the FOIA regime, which currently makes no express provision in respect of datasets.
The two approaches to publishing data
Approach 1: publish everything
This is the approach envisaged by the government. As part of its deregulation and decentralisation agenda it hopes to create an army of “armchair auditors”. Some local authorities have adopted this approach to try and save themselves the costs that are incurred every time an information request is received. By “front-loading” costs and publishing commonly requested information on their websites, local authorities may be able to save money in the longer-term and exceed the requirements of the data transparency regime. Benefits associated with adopting this approach include:
- Reducing staff and legal costs.
- In theory, less FOI requests overall.
- Less time spent by remaining staff on dealing with FOI requests.
- Immediate compliance with the regime envisaged by the government’s transparency agenda.
Approach 2: publish the bare minimum
This is the approach currently favoured by some local authorities, that is, not increasing the scope of information they publish and continue to deal with FOI requests on an ad hoc basis. The question here is whether this approach will continue to be feasible in the light of the increase in the number of FOI requests that local authorities receive, for example, research from University College London’s Constitution Unit suggests that the number of FOI requests received by local authorities has increased from 60,000 in 2005 to 118,000 in 2008.
It is also likely to be the case that authorities looking to publish the bare minimum will have no choice but to publish more and more information, already the government has pushed local authorities to publish details of all spending over £500 and when the draft transparency code comes into force this pressure can only increase. Those with a preference for this approach will be watching the ongoing argument between Nottingham City Council, which is currently refusing to publish display all spending over £500, and Eric Pickles with interest.
So…
What chance does Nottingham City Council have of succeeding? Well, a look at the draft transparency code consultation forum suggests that Eric Pickles has the power under the Local Government, Land and Planning Act 1980 to force renegade local authorities to publish the information set out in the code.
Another important question is what will this all mean for public bodies which lack the necessary financial and staff resources to ensure total compliance with the various transparency requirements in FOIA, the transparency code and the Protection of Freedoms Bill, for example, town and parish councils? The simple answer would seem to be that they have no choice and there will be no exemptions based on the size or resources available to the public body.