Improving FOI and Parliamentary Questions
Back in May, I gave evidence as part of a panel to the UK Parliament’s procedure committee investigation into parliamentary written questions (WQ), with a focus on the overlap with FOI.
You can watch the video , or read our written evidence and the transcript of our oral evidence , but in this blog post I’m going to dive into how this issue interacts with issues in the wider FOI/complaints system.
Why are WQs worse at getting good responses?
We’ve written about the differences between FOI and WQ before, and the basic thing the committee is digging around is that despite on paper they are mostly equivalent regimes, FOI is sometimes more effective at getting information. In theory, this shouldn’t happen. WQs are allowed to take up slightly more official time to answer, and should be answered sooner.
In practice though, FOI can get information released that was denied through WQs — which fits into a general complaint about insubstantial responses to WQs, and gives external validation to the idea that the system is falling short.
Our theory on this is that it follows back from a key difference between the two regimes. FOI has an appeal system: you can ask for an internal review, and then appeal to the relevant information commissioner and the courts. Additionally FOI and WQs are dealt with by different teams, so while both make decisions based on FOI rules, one has a better sense of external feedback through appeals, and the other does not.
Our pitch as a solution to this is it should be possible to convert a WQ to an FOI after first refusal to access the appeal mechanism. This both gives an immediate point of appeal to parliamentarians, but also grounds the parliamentary affairs team in the practical experience of FOI in the wider ecosystem.
The FOI appeal system is in trouble
However, tying the WQ process to the FOI appeal system raises the issue that all is not well in how appeals are working at the moment.
Our research on FOI across Europe really brought home to me the importance of the appeal system as something that keeps the wider system working: the commissioner should not be fixing problems everywhere, but regular and timely decisions and interventions help bring practice at public authorities into sync. In the absence of this, there is little to constrain bad actors in delaying or obstructing a request.
That’s the theory — but the practice can still present significant obstacles. As Democracy for Sale’s Jenna Corderoy told the committee:
Unfortunately, though, I want to draw attention to the current FOI appeal system; it is a long and drawn-out process. If you are requesting an internal review, you are looking at 20 to 40 working days to get a response. If you are unhappy and go to the ICO, you are looking at a long time to get a case officer to conduct an assessment of the handling of your request. By the time it goes to the tribunal, you are looking at about a year into the process. In theory, it is good to have an appeal system, but it can unfortunately take a long time, and it takes the sting out of the newsworthiness of your original request.
And this is getting worse, not better. As we heard from both information commissioners at FOI Fest (an FOI conference we ran with the wider FOI Network), the appeals system is under significant strain at the moment, with a massive increase in appeals, likely due to AI. This is not unique to FOI: Martin Rosenbaum has found that there is an increase in volume across ombudsman and complaints processes .
Warren Seddon (ICO)’s evidence to the committee showed the problems this leads to for timeliness of responses:
In the last 12 months, we saw our intake increase by 16% in Q1, 38% in Q2, and then 60% in Q3 and Q4. That is in a context where, historically, over two decades of the FOI Act, you see a 20% to 25% increase every five years. We have seen a massive surge in the number of complaints in the system. Although the evidence is not there to pull that apart in detail, I think AI is probably driving that.
[..]In terms of the impact on performance and how the system is working at the funding levels that we are seeing coming in right now, there is a real concern from our perspective about where we will end up. We are projecting at the moment that, by the end of this financial year, it will take about 16 months to allocate a case, which is not good from our perspective.
A general increase in FOI is distributed over a lot of different authorities, but an increase in complaints means that high intensity casework is channelled in higher quantities to the commissioner’s office. The end result at the moment is an increase (and expected continued increase) in waiting time for cases to be assigned. This causes much wider problems through the system because authorities that want to drag their feet have a realistic understanding that the ICO is going to take a long time to overrule them.
Dealing with increased complaints
We’ve published our thoughts about dealing with AI-driven demand , and for FOI we think this should be a spur towards greater publication of response, converting what can currently be private benefit into a public benefit that helps reduce other requests, but also makes the act of answering a request far more socially valuable because the information is more widely available.
But this is less the case for the complaints part of the process, which is more resource intensive than answering a request. In some cases, there may be efficiencies to be made, or triage to remove AI-generated complaints that are based on hallucinated ideas of the law. But in general, these complaints are not necessarily illegitimate, and can represent an increase in valid complaints made because the barrier to entry has been lowered.
Seddon’s evidence brought up that the ICO’s FOI budget for the year (which is set by the government) was, in real terms, a decrease on last year, which with an increased case load can only lead to more delays.
There isn’t a clever solution to this one — but there is a boring one. Our information commissioners, ombudsman and complaints systems need more money to process an increase in complaints. In the absence of this, the wider public systems they maintain will not have the anchoring of an effective complaint system. There are costs and benefits to AI, and sometimes we’re going to need to pay more as a society to maintain and improve these chokepoints in our redress systems.
Taking an interest in wider FOI
So to bring this back to Parliament, one of the things we’d like is that Parliament pay attention to FOI. It’s not just a constitutionally good thing, but is part of the information environment of Parliament itself.
MPs make use of FOI themselves : Ben Worthy discussed how FOI and WQs represented different tools that can be used by legislators:
They spoke of using PQs as a very quick and convenient way to obtain some information—one interview described it as a ready-made press release—whereas Freedom of Information lent itself more towards long-term investigative work, digging deeper into an issue or building a national picture.
But FOI is also part of the wider information environment, leading to both informed public and parliamentary discussion. MPs regularly highlight information released by FOI by journalists, academics and constituents as part of their contributions to debates.
Along these lines, there were some interesting questions to the Cabinet Office witnesses around how performance data is gathered and judged. It’d be great to see more recognition from Parliament about FOI’s role in supporting public discourse, and how they can support that.
Cost limits
This evidence session also provided an opportunity to get some more information on the record about floated changes to FOI cost limits . Cat Smith (Committee Chair) brought up, unprompted, that the written questions cost limit is currently pegged to 140% of the FOI cost limit, so there is awareness that the two systems are linked.
Jenna Corderoy pointed out that reduced cost limits would have a negative impact for users of FOI; t that AI shouldn’t be used “as an excuse to reduce cost limits” and that “any reductions on limits are most likely to have a serious impact on the ability to access information that is in the public interest.”.
I made a point about the potential for improved AI search technologies to make it easier to discover information (not just for FOI, but for the government to better understand itself).
This also saw the first public comment from ICO on this floated change, with the view that the current limit is broadly working fine:
Warren Seddon: The cost limit has not changed. There has been a bit of debate about it in the past, but it broadly works as it stands. It is well used; if you look at the central Government statistics, around a quarter of refusals are due to the cost limit, so it is in play a lot, and we see it a lot in the complaints that we get.
Interestingly the Cabinet Office witnesses, when given the chance, did not talk a lot about AI-induced demand as a reason to lock down:
Chair: In your incoming FOI requests, do you see a lot of evidence that AI is playing a role in the input?
Clare Brunton: I do not think so. I asked that question of Eirian before this session. Obviously it is hard to tell because you cannot always tell what is being written by AI, but when you look at the trends of FOIs, there has not been a huge uptick as AI comes in. It has been quite a steady growth. I am sure some of that is AI, but actually it has been a fairly steady growth over the last 20 years or so anyway. We have not noticed any spikes.
Eirian Walsh Atkins: As the earlier panel said, where people are using AI is at the more complex end of FOI, in the complaint stages and in litigation to help them with those slightly trickier processes. I do not think that AI is being used significantly in initial requests to the Cabinet Office.
So this panel provided no strong evidence or opinions that cost limits would solve current problems of FOI, while focusing in on the issue of the complaints system, where a key issue is under-funding of the ICO (and equivalent ombudsman processes).
Better governance need better information
Fundamentally, Freedom of Information has been a massive success that has made the information environment (in public and in parliament) richer. It provides a benchmark to assess that the Parliamentary written questions system is not keeping pace with legal right to information that the Act gives us all.
But at the same time, it’s not good enough . Both active pushback from government and wider shifts in technology and how public services are run risk making it a less effective and useful system.
It’s great to see MPs asking questions about FOI, and we hope it’s followed up with more attention paid to this vital constitutional system.
Header image: Photo by Vadim Bogulov on Unsplash