How the new act will affect you
The freedom of information Act brings opportunities as well as risks for your charity, writes Gary Flood
Third Sector magazine
The Freedom of Information Act became law at the start of this year. If your organisation responded to that milestone with a shrug and a ‘so what?”, you could be running a big risk and missing some major opportunities, especially if you are a campaigning charity.
That’s the message from experts including lawyers, commentators and the first wave of third sector organisations that are already using the Act to put pressure on the Government.
It’s not just charities in England and Wales that will need to swot up. Those operating north of the border need to be aware that Scotland’s freedom of information legislation, which is similar – some say tougher – also came into full effect at the start of the year.
What the Act says
More people are realising that the Freedom of Information Act -often shortened to the FOIA -allows UK citizens to get information about the way government comes to decisions at both local and central level. It applies across the board, from hand-written notes in a chief executive’s diary to salary details of key decision makers, minutes of meetings, expenses and documents from previous public enquiries. The Act gives applicants two important rights: to be told whether the information is held, and to get it. They can also request to inspect records in person.
Though there are many exceptions – too many, say some activists – there is now a presumption of disclosure: the body contacted must supply a very good reason for not disclosing the information. Indeed, there’s a risk of a two-year custodial sentence for the party withholding information if the main freedom of information arbiter, the Information Commissioner, decides the enquiry is legitimate.
Though it’s very early days, the Government has already made all sorts of previously ‘secret’ information available. Examples range from the sublime to the ridiculous, including reports on UFO sightings, discussions on the economics of keeping a cat at the Home Office, and mandarins battling their bosses for softer toilet tissue. At the same time, Number 10 has strongly resisted media requests for details of preparation for the war in Iraq.
What it means for you
The Act only applies to public sector bodies. That’s more than 100,000 agencies, all the way down from the Prime Minister’s daily activities and the heights of Whitehall (though MI5 and MI6 are specifically excluded) to the police, your local NHS trust and further education colleges.
So far, so good -on the face of it, the Act shouldn’t be on the radar screen of non-profit groups. Charities don’t build hospitals, let alone invade foreign countries, so this isn’t going to affect them. But here’s the rub: a charity that acts as a service provider to one of those 100,000-plus public sector bodies comes into the purview of the Act.
‘This can mean being brought in as a consulting body on a new PFI [private finance initiative] hospital in your community,’ says Mike Davis, a senior research analyst with UK technology analyst firm Butler Group. ‘There are many instances that could be interpreted as you as a charity acting as a public body in your own right.’
If some of the ideas flagged in advance of the upcoming general election are credible, charities that are invited to supply more and more services in the health or social care arena could become exposed.
Last May, Alan Milburn said:
‘There should be a far greater role for charities and the voluntary sector in delivering what are currently main- stream public services.’ His suggestions -not official policy so far – included organisations such as the Red Cross playing a bigger part in providing a ‘community equipment service’, for instance. Milburn, of course, is leading the drafting of New Labour’s election manifesto.
What action to take
The conclusion must be that charities should be aware that providing a public service means being liable to the same constraints as other such providers. This means not only that charities should have a record-keeping regime that is flexible enough to respond to a possible FOIA request, but also that someone should be made responsible for freedom of information issues- if only because, under the law, requests are to be addressed to that individual.
Another reason for tip-top record keeping is adherence to the Charity Commission’s managing philosophy, the rules of which are designed to ensure UK charities are ‘efficient, transparent, accountable and risk -aware’.
Good record keeping can have business process implications as well as legal ones. ‘The thrust of the Act is to make ~ the organisation place greater value on the information it possesses and to make sure it’s looked after in the most responsible way,’ says Davis. ‘That could mean anything from software to help with records management to just a good filing cabinet -whichever works for your organisation. But whichever you use, look after it well and make sure staff know what it’s for.’
It’s also worth noting that, in the words of Phil Tompkin, an Associate Partner with law firm Dickinson Dees: ‘If you don’t hold it, you don’t have to disclose it.’
However, ‘misplacing’ records could get you into hot water. ‘Though there is a get-out clause if getting out the information requested is prohibitively expensive, that’s not really following the spirit of the Act and could reflect badly on you,’ says Andrew Barnes, marketing director of KVS, a subsidiary of US software giant Veritas, specialising in document archiving. ‘You need to put in place a non-intrusive way to ensure information is retained,’ he suggests.
This doesn’t mean you need to splash out on expensive new IT and document management systems. The idea is that best practice in document handling should become a priority. Davis suggests that compiling a schedule of all the documents you publish is a good starting place.
If freedom of information competence is something charities working with public sector bodies should strive for, an equally big reason to get to grips with the Act is what it could offer you as a campaigning organisation.
The idea here is to use the Act as a tool; a way to open up hitherto locked doors and get information that is useful to make your case better. In many ways the drafters of the legislation see that aspect as one of the main drivers for the law, and there is a genuine feeling that the principle of freedom of information will help the public sector, media and general public to make the UK a freer and more democratic society.
The UK is not the first country to bring this sort of legislation in. The US led the way in 1966, followed by France and the Netherlands in 1978, Australia in 1982 and Ireland in 1998. The Swedes passed theirs in the 17th century.
‘Though these Acts aren’t all alike, the biggest users of these powers are investigative journalists and pressure groups,’ says Tompkin.
One UK charity that has already said it will use the Act to further its cause is the British Union for the’ Abolition of Vivisection. ‘We see the Act as offering lots of scope to start breaking down the culture of secrecy in Whitehall,’ says its legal adviser, David Thomas.
‘We feel that public authority is too inclined to overplay the issue of confidentiality in many records to do with vivisection and animal experimentation, and we see use of the Act as a way to open up this issue for greater public debate.’
The charity is already in correspondence with the Home Office to get access to key documents after years of campaigning, and is also preparing to fight to stop too much information being kept back.
But it’s very unlikely the BUAV is going to be the only UK charity or NGO interested in how the Act could help supply missing information or help put pressure on public body decision makers.
Your use of the Act could be a bit more prosaic, too. ‘A charity that lost out in a bid to offer a public service could investigate the winning contractor to see why they won,’ suggests Tompkin.
Julia Apostle, a lawyer with DLAP Piper Rudnick Gray Carey, adds: ‘This is a good time to get to understand the Act and see how it could be of strategic use to you.’
The wake-up call to the third sector is that it’s possible that someone could try to do exactly the same thing to you – so make sure you’re prepared. Freedom, it seems, really does mean responsibility.
Source: Third Sector magazine.