Ofcom should publish its FOI decisions

As the first year of the Freedom of Information (FOI) Act�s applicability to Ofcom and similar public entities enters its final quarter, I�ve been thinking more and more about how Ofcom can improve its FOI procedures�to make them more meaningful and user-friendly.

Here�s an idea: Ofcom should organise and publish its FOI decisions. Those decisions should be stored on Ofcom�s website in some intelligent manner with a search engine feature to enable members of the public and regulatees to know the corpus of Ofcom�s decisions on FOI. The FOI Act, bear in mind, is not some abstract law�it means that public bodies, with certain important exemptions�should be transparent to the public.

There are several reasons why publication of FOI decisions is not only a good idea, but critical to Ofcom�s implementation of, and compliance with, the FOI Act:

First, administrative efficiency will be improved on two levels. On a general level, Ofcom always benefits by having its legal documents stored and easily locatable by its staff and the public. On a more specific level, if the public knows�in advance�what types of information Ofcom deems cannot be released under FOI and what kinds of information can be released under FOI, it will reduce the number of �erroneous� FOI requests, or duplicative requests.

Ofcom is not a singular institution frozen in time, but an organisation that will change with: (i) newer ways of thinking about regulatory governance, (ii) changing legal obligations and laws, and (iii) new leadership. Thus, Ofcom�s interpretations of its obligations under the FOI Act will invariably change. Publishing the FOI decisions enables the public and regulatees to ensure that changes in Ofcom�s interpretation of the FOI Act are based on proper legal thinking and not simply the personalities or governance tendencies of those in charge. Some people, by their nature, are just more secretive than others. Some documents, by their nature, are just more politically sensitive than others.

Furthermore, in situations where a certain document is of interest to more than one party that is perhaps making the FOI request (e.g., the Ofcom research related to the FA Premier League football rights), publishing the decision is a way of treating everyone equally and ensuring that there is no two-tier system of information where some people are �in the know� and others simply acting on rumour or misinformation. In other words, publishing the decisions improves Ofcom�s transparency, and ultimately its legitimacy.

Finally, publishing the FOI decisions enables the public and elected officials to determine whether Ofcom is complying with the FOI Act in a meaningful way. Of course Ofcom will publish aggregate statistics (�we processed XXX number and granted XX%�), but reviewing the actual published FOI decisions is equally important in assessing Ofcom�s compliance. The exemptions to the FOI Act are important (and of course valid) limitations on the public�s right to know, so how Ofcom interprets those exemptions should be a public matter. This is particularly true because some FOI exemptions have a public interest balancing test. People (OfcomWatch) will speak out if they see that Ofcom is withholding otherwise public information under flimsy pretences. But people will only speak out if they are able to spot those situations where Ofcom have acted improperly, or failed to consider an important issue. Thus, publishing the FOI decisions is critical.

Publishing the FOI decisions will of course necessitate some procedural changes. First, Ofcom�s published decisions will need to be of a higher calibre. Ofcom Watch have received a few FOI decisions that are poorly written and use very bare bones wording to describe the decision. These types of denials do nothing other than send a blanket �go away� message to the requestor. Click here for an example (by the way, we simply asked for a list of employee names and positions); it discredits Ofcom.

Accordingly, if these FOI decisions are to be published (and thus cited by future FOI requestors) then the quality of the documents will need to be improved somewhat. For example, the documents will need to be self-contained and, unlike our example above, have an initial paragraph that states precisely what the FOI request covered. Otherwise, publishing the documents will have a limited value.

Second, Ofcom will need to deal with the issue of whether to disclose the identity of the FOI requestor. I personally think that it does not matter if the identity of the requestor is undisclosed in a published FOI decision. This is consistent with the Act itself, which deals with information held by public bodies, and is not focused on �who� seeks the information under the FOI Act. Anyone can. But Ofcom need to consider this issue further.

This is just one idea for improving the manner in which Ofcom relates to the public and regulatees, but I think it is a useful step and one that would greatly benefit Ofcom. We will see what Ofcom�s reaction is�I hope it is positive.

Comments to blog@ofcomwatch.co.uk