UK Freedom of Information Blog

Don't remove policy advice from the FOI Act: a response to Lord O'Donnell and Jack Straw

2012-05-25T12:51:00.000+01:00

The Campaign for Freedom of Information has made a supplementary submission to the Justice Committee's inquiry on post-legislative scrutiny of the Freedom of Information Act.

The submission addresses some of the points about the Act's exemption for policy advice made by Lord O'Donnell and Jack Straw in their evidence to the Committee. It also provides further details of excessive or wasteful spending revealed by FOI which is generally not taken into account when assessing the Act's 'costs'.

Information Commissioner & Tribunal Decisions course - 28 June 2012

2012-04-02T17:31:00.000+01:00

The Campaign for Freedom of Information's next course on 'Information Commissioner & Tribunal Decisions' will be in London on 28 June 2012.

This course, now in its 7th year, deals only with recent decisions and does not repeat material covered in previous courses. It is aimed at experienced FOI practitioners and others with a good working knowledge of the FOI Act and is not intended as an introduction to FOI. Its exact content is dependent on the decisions that have been issued during the period, but typically covers issues such as:

"fair" and "unfair" disclosures of personal data;
the FOI/EIR borderline;
the application of specific exemptions including those for breach of confidence and commercial interests; where the public interest line is being drawn; and
the cost limit, aggregating requests, invalid requests, advice & assistance and other administrative provisions.

The course will be presented by Maurice Frankel, the Campaign's director, who has worked in the field for 28 years.

Significant discounts are available for more than one booking from the same organisation.

Download the booking form here.

Media round up March 2012

2012-04-01T11:03:00.000+01:00

Police chiefs hire retired colleagues on £1,100 a day to act as consultants Daily Mail - 26.03.2012
The Association of Chief Police Officers (ACPO) has come under scrutiny after Freedom of Information requests released information showing that contracts worth hundreds of thousands of pounds were signed with companies run by their former colleagues. The FOI requests, made by the Yorkshire Post, revealed that more than £800,000 was paid in total to ten consultants.

Murder suspects among thousands still at large despite arrest warrants Telegraph - 22.03.2012
Police statistics suggest that more than 30,000 suspects have fled before attempts were made to secure convictions at a court. The figures, released under Freedom of Information laws, disclose that 14 percent of "outstanding arrest warrants" related to offenders accused of violent crimes. The figures, supplied to the BBC, cover cases where a defendant has failed to appear for trial or for a court appearance after being released on bail.

David Cameron's housing gaffe exposed by councils Property 118 - 20.03.2012
David Cameron's claim that buy to let landlords are reducing the cost of rents in response to the Government's welfare reforms is untrue, according to information from councils. The social housing magazine Inside Housing tested Cameron's claim to the House of Lords that the new welfare policy was forcing landlords to cut rent by sending out Freedom of Information requests to every council in England. The truth is that just 36 councils confirmed that any landlords were cutting rents in return for direct housing benefit payments, and 12 had a total of 65 landlords taking advantage of the offer.

Budget 2012: Non Doms face increased tax levy CityWire - 20.03.2012
Non-doms living in Britain for 12 years face an increased levy of £50,000, the chancellor has announced. The move is effective 6 April and will likely prove controversial as since the existing £30,000 levy was announced - by then-chancellor Alistair Darling in 2008 - the number of individuals registered as non-domiciled has fallen. The number of non-doms - persons resident in the UK allowed to keep overseas income outside of Britain’s tax regime - fell by 16% in the last two years, according to data obtained by law firm McGrigors under the Freedom of Information Act.

Waiving the rules to keep the nuclear power programme on course Spinwatch - 20.03.2012
The energy minister, Charles Hendry, is preparing to waive the rules on admitting skilled foreign workers in order to keep the government's nuclear power programme on track. Hendry made his suggestion at the first meeting of a hitherto secret group called the Programme Management Board. The minutes of the meting last November and subsequent correspondence have been released by the Department of Energy and Climate Change (DECC) under Freedom of Information laws.

NHS risk register: no decision over publication BBC News - 12.03.2012
The government says it has not decided whether to appeal against a Tribunal ruling to make public a risk assessment of the NHS shakeup in England. Minister Lord Howe said the transition risk register would not be published until the FOI Tribunal explained its ruling but Labour peers said that Parliament could not properly scrutinise the health bill without seeing the register.

999 Service staff cuts Huffington Post - 11.03.2012
Labour has accused the coalition of overseeing a "shocking" 5,000 cut in police dealing with 999 emergencies. Figures released under Freedom of Information laws suggest the number of "first responder" officers has dropped by 5,261 since the general election. David Cameron has repeatedly insisted that frontline police have not been affected by cuts to budgets.

Primary academies Tottenham Journal - 1.03.2012
Private emails reveal that Haringey Council's chief executive was overruled as the Department for Education pushed forward with its primary academies 'experiment'. The emails - which date from last March to January and were released as part of an Freedom of Information request - show the ongoing tug-of-war over primary schools in Haringey between the DfE and the council.

£4,500 spent on hoax calls by Hereford and Worcester Fire and Rescue Service in the past 3 years - Bromsgrove Advertiser - 1.03.2012
The figures obtained through Freedom of Information requests show that the time spent on what the service calls "malicious false alarms" totalled 20hrs 32mins.

Staff axed from quangos to share £2m bonus - Public Service 28/3/2012
Staff working at the soon to be defunct regional development agencies (RDAs) shared a bonus pot of £2.16m, a Freedom of Information request by Conservative MP Jake Berry has revealed. The figures showed the money was shared by 2,026 staff at nine RDAs which will be scrapped by the end of April. The average bonus was said to be £2,000.

NHS Ayrshire and Arran commit "worst ever" Freedom of Information breach - Ardrossan Herald 27.2.2012
NHS Ayrshire and Arran has been severely criticised for withholding more than 50 reports detailing serious incidents at its hospitals and clinics. The health board refused to release the critical incident and adverse event reports - some of which involved the deaths of patients - to its own staff. Information Commissioner Kevin Dunion said there had been "a catalogue of failings" by the board which may have been the most serious breach of FOI laws he had ever dealt with.

Jobseekers forced to clean private homes and offices for nothing - The Guardian 24/2/2012
Jobseekers forced to clean private homes and offices were supplied by a government contractor. The Guardian has discovered through a Freedom of Information request that a major government contractor, Avanta, has compelled jobseekers to work as unpaid cleaners in houses, flats, offices and council premises under the work programme. The programme has received criticism that using unpaid labour to carry out routine tasks amounts to a public subsidy for employers, has resulted in a succession of high street shops pulling out of the scheme this week.

Millions spent on empty court buildings - The Law Gazette 23/2/2012
A Freedom of Information request has revealed that the government is spending £2.5m a year maintaining dozens of redundant courts across England and Wales. The Freedom of Information request shows that 69 former court buildings remain vacant, with no imminent chance of them being sold. Justice minister Jonathan Djanogly announced in December 2010 that 142 courts would close to save money. It is understood that 121 have since shut, most by April 2011.

Councils spent half a billion pounds on CCTV in four years - 24 Dash 22/2/2012
Local authorities in the UK have spent more than £500 million on their CCTV operations in the past four years, according to a report by Big Brother Watch. The report - following a Freedom of Information request - reveals there are now at least 51,600 CCTV cameras controlled by councils, with five of them each operating more than 1,000 cameras.

Asylum seeking children win compensation after being unlawfully detained - Children and young people now 20.2.2012
The Home Office has paid out more than £1million in compensation to 40 asylum seeking children who were unlawfully locked up in adult detention centres. The case, which concluded in 2010, came to light through a Freedom of Information request made by The Guardian. A judicial review was launched in 2005 resulting in the Home Office changing the law and in the formal admission that 40 children had been unlawfully detained, for which the Home Office agreed to pay compensation and legal costs. But the Refugee Council warned that children are still wrongly being held in adult detention centres.

ICO announces announces results of FOI monitoring

2012-03-20T13:48:00.001Z

No enforcement action will be taken against the Cabinet Office or the Ministry of Defence following an extended period of monitoring, as both departments have improved their FOI response times, the ICO has announced:

Both authorities have now improved their response times with over 85% of information requests being answered within the time limit of 20 working days and are working hard to deal with outstanding requests where responses have been unduly delayed. The ICO will continue to offer support and advice to help both Departments to ensure that outstanding requests are cleared as soon as possible.

It will be interesting to see the Ministry of Justice's statistics when they are published. Both departments were required to sign undertakings committing them to improve their performance in June 2011. The MoJ statistics for the period 1 July to 30 September 2011 show that the Cabinet Office answered only 65% of requests within 20 working days and the Ministry of Defence figure was 79%.

The ICO also announced that 6 of the 18 public authorities monitored between 1 April and 30 June 2011 have been required to sign undertakings. These are the Welsh Government, Kent County Council, Cornwall Council, East Lancashire NHS Trust, Nottingham City Council and North Somerset Council.

Last week the permanent secretary of the Cabinet Office, Ian Watmore, was questioned by the Public Administration Committee about the department's record on FOI. He assured the Committee the delays had been dealt with:

Q114 Alun Cairns: Mr Watmore, how would you describe the transparency record of the Department?
...
Ian Watmore: Because the transparency agenda started with us, we have attempted to be as transparent as we possibly can in as many areas as we can. We have been publishing loads of statistics about what we have achieved, when we have achieved it, what all our people get paid, how many savings we have achieved in the efficiency programme, etc. I do not know if there are any areas that you have in your mind that you wanted to probe.

Q116 Alun Cairns: Yes, I wanted to probe a bit further. Having expressed concerns in August 2010 about the performance of the Cabinet Office in responding to FOI requests, in October 2011 the Information Commissioner announced that it was placing the Cabinet Office under special intensive monitoring arrangements. How do I reconcile that statement with what you have just said?

Ian Watmore: No, I absolutely understand what you are saying. I think what happened, bluntly, was not a lack of transparency. The FOI requests were flooding in from all parts of the system; we had hordes of people arriving; the Department was being restructured; and the management eye went off the ball in terms of ensuring that the FOI requests were answered properly. I think the Information Commissioner rightly held us to account for that. We have put in place a programme to deal with that. It is now dealt with.
...
Q118 Alun Cairns: How do you see, then, the Department acting as a role model to other Departments across Government, bearing in mind you need to take the lead on this, when you are under such special measures?

Ian Watmore: I think there is a difference between, "Are you administratively correct in what you are doing?" and "Are you trying to hide information?" We are definitely not hiding information. We seek to be transparent. We will answer all Freedom of Information requests as required by the law. In this particular case, we got behind on the backlog of FOI requests and we had to move resources to it to deal with it. It was a mistake. We have corrected it. I do not think it will happen again.

Q119 Alun Cairns: I might accept the responses that you have just given me if it was not for standard parliamentary questions going out and the responses coming back saying that you do not hold the information or the information is too costly to collate, which has also been a concern to a number of interested parties and to MPs too. Is it not that that has been used an excuse?

Ian Watmore: That answer, almost certainly, would have been given whether we had done it on time or not. There is a difference between, "Does the FOI request get answered in the allowed time?"-and I accept that the Cabinet Office got behind on that and we have sorted it-and the completely different question of, "In an individual FOI request, do you like the answer that is given?" You will not like some of the answers that are given. We get a lot of requests for a lot of information that would be an unbelievably disproportionate cost to go and collect, at a time when we are already accused, by other parts of the world, of being overly demanding on information from Government Departments.

He was also asked by the chair of the Committee whether parliamentary questions get as equal respect as FOI requests and whether the department refuses to answer more PQs than other departments.

Q127 Chair: I am sure there is not an intention, but there is no legal force to a parliamentary question but there is legal force to an FOI request, so, inevitably, it is easier to fob off a parliamentary question.

Ian Watmore: I would be happy to look into any examples you have. What I am saying to Mr Cairns is not that there is an unwillingness to be open. There is a very strong willingness to be open. The Government has committed to that and we take it. What I think we did lose the focus on was the administration of it. We have corrected that. Then it is a question of having to look at each topic on its merits.
...
Q131 Chair: Can I just press you on this point before we go on? We are advised that you have, in the past, refused information on the grounds of cost, which other Departments have been able to provide. Do you accept that?

Ian Watmore: I do not know. You have to give me the examples. Without an example in front of me, I cannot say.

Full uncorrected transcript of evidence here.
See also Tim Turner's blog post 'The Cabinet Office & FOI, A Retrospective, 2010-2011'

FOI post-legislative scrutiny: Campaign gives evidence

2012-02-22T16:10:00.000Z

The Campaign for Freedom of Information has submitted written evidence to the Justice Committee's post-legislative scrutiny of the Freedom of Information Act. The submission is divided into three parts. The first describes some areas where the FOI Act and Environmental Information Regulations are not working as well as they should. It suggests a number of improvements such as the introduction of more specific time limits for responding to requests and dealing with internal reviews and the lifting os some absolute exemptions. The second deals with the contracting out of public authority functions to bodies which are not subject to the Act. Recent measures to encourage this process are likely to substantially undermine the public's rights to information. The third responds to suggestions that changes to the right of access may be introduced to protect cabinet papers, to introduce fees for FOI requests or make it easier for public authorities to refuse requests on cost grounds.

The Campaign also gave oral evidence at the Committee's first evidence session yesterday along with WhatDoTheyKnow and Unlock Democracy. You can watch a recording of the session here.

Justice Committee post-legislative scrutiny commences

2012-02-21T08:00:00.000Z

Committee Room 8
Meeting starts at 10.30am

Post-legislative scrutiny of the Freedom of Information Act 2000

Witnesses

Campaign for FOI (@campaignFOI), Unlock Democracy (@UnlockDemocracy), and WhatDoTheyKnow (@WhatDoTheyKnow)

Professor Robert Hazell CBE, Director, Jim Amos, Honorary Senior Research Associate, and Ben Worthy, Research Associate, UCL Constitution Unit

You can watch the session live or recorded here.

Current Developments in FOI seminar - Dundee 21 Feb 2012

2012-02-17T12:07:00.000Z

Speakers:

Professor Alan Page, Dean of the School of Law, Professor of Public Law and Centre Co-Director

Welcome and general introduction from the Chair

Kevin Dunion, Scottish Information Commissioner’s valedictory lecture to the Centre, reflecting on the key themes of his Special Report to the Scottish Parliament

Freedom of Information in Scotland: a position of strength, but scope for improvement?

Panel responses to the presentation. Panel includes: Karen Williams (Grampian Police and ACPOS), Rosalind McInnes (Principal Solicitor, BBC Scotland)

Followed by audience discussion

If you would like to attend please download the booking form by clicking on the pdf below and email to centrefoi@dundee.ac.uk by Friday 17th February 2012.

Alternatively, you can click here to book online.

Ministerial veto used for third time

2012-02-08T17:57:00.002Z

The Campaign for Freedom of Information expressed regret at the Attorney General's decision today to veto the release of minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions (DSWR). The Information Commissioner had ordered their partial disclosure under the Freedom of Information Act (see earlier post). However, the Commissioner agreed that information directly identifying individual ministers should be withheld as should certain passages discussing "the more sensitive areas of policy" and the legal advice referred to in the minutes. The Cabinet Office's appeal to a Tribunal against the decision was due to be heard next month.

The Campaign said: "In December 2009 the Labour government also vetoed an earlier decision of the Information Commissioner ordering disclosure of the same cabinet sub-committee minutes. It too did so shortly before a Tribunal hearing was due to take place. This time round, the Commissioner has made a more limited order, accepting that some parts are still sensitive and should be withheld. Regrettably, both governments have preferred to rely on the veto rather than make their arguments to the Tribunal."

This is the third use of the ministerial veto since the Act came into force. The previous occasions involved the minutes of the cabinet meeting at which the legality of the war in Iraq was discussed, and an earlier decision relating to the same devolution subcommittee minutes.

The Commissioner's decision ordering partial disclosure of the minutes stated that he "has recognised the validity and weight of the argument against disclosure on the grounds of preserving the convention of collective Cabinet responsibility":

His conclusion is that this factor tips the balance in favour of maintenance of the exemptions in relation to some of the information, specifically content that identifies individual Ministers and other content that in the Commissioner’s view covers what could be fairly characterised as the more sensitive areas of policy discussed by the Devolution Committee. In relation to the content identifying individual Ministers and the content recording discussions on sensitive issues, the view of the Commissioner is that the factor relating to collective Cabinet responsibility continues to carry significant weight. The Commissioner would stress that his decision in relation to information identifying Ministers means that only the content specifically identifying any Minister should be redacted...

In relation to the remainder of the content, the Commissioner considers that its disclosure would not be likely to result in harm to the convention of collective Cabinet responsibility, particularly given the passage of time. The Commissioner considers there to be a specific public interest in disclosure in order to inform current and future debate about devolution and a general public interest in the transparency and openness in decision-making.

In his statement of reasons for exercising the veto, the Attorney General says he considers this to be "an exceptional case" in accordance with the Government's policy on use of the veto in section 35(1) cases:

I have considered this case in the light of the Government’s published policy on use of the veto, taking particular account of the following factors which I believe to be relevant:
The information in this case records considerable discussions on the substance of the Government’s policy on devolution. It is not merely concerned with the process of decisions being taken.
Devolution was a significant policy at the time, and indeed remains so...
A number of individuals have comments attributed to them in the minutes, including where they are not in agreement on certain policy issues. Although the Commissioner decided that content identifying individual ministers should be withheld, I do not consider that such an approach significantly alters the public interest considerations in relation to the remainder of the information.
Of the large number of Ministers who took part in at least one of the DSWR meetings a significant majority remain active in public life: 12 are currently members of the House of Commons and a further 19 are members of the House of Lords;
Of those former Ministers engaged in the Committee the majority favoured withholding this information. I consider this a particularly relevant consideration given that the information constitutes papers of a previous administration with the consequence that I, as the accountable person, am the only current Minister able to view the documents.

The Attorney General's written ministerial statement is here.
The Information Commissioner's response and decision notices relating to this case are here.

Freedom of Information and rejected honours

2012-01-31T13:34:00.000Z

The Campaign for Freedom of Information has written to The Times responding to an article by Matthew Parris on the recent disclosure of the names of those who had refused honours under the FoI Act in which he argued that "the advance of Freedom of Information should be reversed...Otherwise FoI could have the reverse effect to what its proposers intended, driving the important information back into the closet."

The letter was published in The Times on 31 January 2011.

Sir, Bewilderingly, Matthew Parris seizes on the disclosure of the names of those refusing honours to call for the Freedom of Information Act to be restricted (‘Back to scrawled notes and secret whispers’, Jan 28). He suggests that Whitehall may now be discussing how to avoid recording this information to prevent such sensitive releases in future. That is most unlikely.

The requester had merely asked for the names of deceased persons who had refused honours, the awards involved and the dates. No information about anyone still living, no correspondence and no internal Whitehall discussions were sought. Where significant research might have been needed to establish if someone had died, the requester proposed that the names should simply be withheld, to avoid the work. The Information Commissioner ruled that refusals within the last ten years should not be disclosed, even though those concerned were deceased.

The FOI principle is that information should be released unless disclosure is harmful. What is the harm here? No living individual’s privacy has been infringed. No civil servant’s advice has been revealed. No time-consuming inquiries have had to be made. No-one thought worthy of an honour will now be denied it and no-one inclined to reject an honour will now feel obliged to accept it.

Maurice Frankel
Director, Campaign for Freedom of Information

Briefing on the future of the FOI Act

2012-01-12T10:50:00.001Z

2 pm Wednesday 18 January 2012

Campaign for Freedom of Information, 16 Baldwins Gardens, London EC1N 7RJ

The Freedom of Information Act is being reviewed by a parliamentary committee which is likely to recommend changes to the law. This could be an important opportunity to improve the Act. But there will also be significant pressure for new restrictions from public authorities concerned about the cost of dealing with FOI requests or lobbying for new exemptions.

If you would like to contribute to the exercise, it is important to act quickly. The deadline for submitting evidence to the committee is 3 February 2012. The Campaign for Freedom of Information is holding a briefing meeting on January 18 at 2 pm for those who are considering giving evidence.

This ‘post legislative scrutiny’ of the Act is being carried out by Justice select committee of the House of Commons.[1] It has been prompted by the Ministry of Justice which has published a memorandum[2] highlighting specific areas of concern, including:

· Increasing request volumes
· The cost to public authorities and impact on resources
· The difficulty in refusing vexatious requests
· The level of protection given to policy advice and cabinet papers
· The impact on public authorities with commercial functions

The memorandum also:

· Acknowledges delays can occur in conducting public interest tests and carrying out internal reviews
· Discusses the possible extension of the Act to other bodies.

The memorandum says there is “limited evidence” about requesters’ views on the Act. It is therefore important that the select committee hears from requesters and we strongly encourage you to submit evidence about your experiences.

If you would like to attend the Campaign’s briefing meeting on January 18 please rsvp by email to admin@cfoi.demon.co.uk, via Twitter @CampaignFOI or by telephoning the office on 020 7831 7477. We would be grateful if you could circulate details of the meeting to any colleagues or contacts you think may interested.

Notes

[1] http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/foi-announce/
[2] http://www.justice.gov.uk/publications/policy/moj/post-legislative-scrutiny-foi.htm

Course on Scottish Information Commissioner Decisions

2012-01-09T16:58:00.000Z

The Campaign for Freedom of Information in Scotland is providing a half-day training course on 'Scottish Information Commissioner Decisions' in Glasgow on 20 March 2012 and Aberdeen on 21 March 2012.

The course is aimed at FOI practitioners and those with a good working knowledge of the legislation. It highlights the latest developments in the way the exemptions, public interest test and the legislation's procedural requirements are being interpreted. The course is presented by the Campaign's direction, Maurice Frankel, who has worked in the field for 27 years. It will cover the most significant decisions issued since our last course in February 2011.

While the course will focus on the significant decisions issued by the Scottish Information Commissioner since the last course, it will also cover significant Court of Session rulings and decisions issued by the UK Tribunal that have implications for Scottish public authorities.

The course represents extremely good value for money. The course fee has remained the same since 2006, and significant discounts are available for more than one booking from the same organisation.

No need for more Cabinet secrecy

2011-12-20T18:50:00.000Z

The Campaign for Freedom of Information has written to The Times responding to comments made by Sir Gus O'Donnell, the outgoing Cabinet Secretary, that the Freedom of Information Act should be amended to provide greater protection for cabinet discussions. In an interview [£], Sir Gus told the newspaper he was a "massive believer in transparency" but "the bit that I'm really against in freedom of information is that bit where it reduces the quality of governance, so I want there to be a safe space."

An edited version [£] of the letter appeared in The Times on 20 December 2011. The full letter is below.

Sir, It is hard to believe that the Freedom of Information Act is the severe threat to cabinet government that Sir Gus O’Donnell, the cabinet secretary, maintains (‘Keep Cabinet secret’, December 17).

If the government thinks that the public interest favours keeping policy discussions or ministerial communications confidential, it can already appeal to a Tribunal against any decision by the Information Commissioner to order disclosure. There are further rights of appeal to an Upper Tribunal, the Court of Appeal and beyond. If arguing the case is too much trouble, ministers can instead simply veto the decision. As Sir Gus acknowledges, this has twice been done to protect cabinet and cabinet committee minutes. Yet he now seeks further protection precisely for such minutes.

The Tribunal’s decisions explicitly give heavy weight to the public interest in protecting collective cabinet responsibility by withholding evidence of ministerial disagreements. They also assume that disclosing options or advice while these are still under discussion is unlikely to be in the public interest.

When Tony Blair prematurely announced, in 2006, midway through a public consultation on nuclear energy that he had already decided the key issue, the Tribunal nevertheless refused to order disclosure of the briefings he had received or the views of ministers, finding that “they were entitled to be treated as confidential” at the time of the request “and probably for a substantial time thereafter”. Officials’ advice was also withhelsd.

Sir Gus presumably wants the Prime Minister to resuscitate the proposal rejected by the last government, to exclude all cabinet and cabinet committee papers - not just minutes - including exchanges between departments, from FOI for 20 years. This would have kept secret interdepartmental discussions on issues like BSE, permitting disclosure only when it was too late to inform debate, provide accountability or learn from mistakes. Key documents on countless other issues would also be secret for two decades, regardless of the public interest in openness or the fact that when requested they might no longer be sensitive.

The last government rejected this proposal. The present should do the same.

Maurice Frankel
Director, Campaign for Freedom of Information

MoJ discloses further details about extension of FOI

2011-12-19T11:23:00.000Z

Following a FOI request by the Campaign for Freedom of Information (see earlier post), the Ministry of Justice have disclosed further details about the bodies they are consulting on FOI coverage.

In addition to the 25 bodies announced on 7 January 2011, the list includes over 150 'awarding bodies', and over 200 harbour authorities. A list of all the bodies can be downloaded as an Excel spreadsheet here.

The MoJ have also provided a list of the bodies they believe are likely to be brought within the scope of the Act by the amendment to the definition of 'publicly owned company' that is being implemented via the Protection of Freedoms Bill. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. The response to our FOI request stated:

We do not hold a comprehensive list of all bodies which will come within scope of the FOIA through this change. However, we carried out targeted research on a number of local authorities to estimate the number of bodies likely to be affected by this change within local government, and the list I have provided is the result of this research. I should clarify that the information on the list simply reflects the responses provided by the local authorities we contacted (green colour code) or from our own research (pink colour code). We have estimated from this information that the number of bodies that will be brought within scope under the changes to section 6 will be at least 100.

Jointly owned companies identified from the research include Bramcote Crematorium, Gunnersbury Park, Manchester Airport PLC, Gloucestershire Airport, Beacon Local Nature Reserve, Mount Edgcumbe House and Country Park, Farningham Woods Nature Reserve, Shoreham (Brighton City) Airport, Wetley Moor and Connexions Staffordshire as well as a number of shared purchasing and services companies.

The list also contains examples of companies partially owned companies which won't be covered by the changes to section 6. Such companies include Nottingham City Transport of which Nottingham City Council is the majority owner, and the NEC Group which has two shareholders Birmingham City Council and Birmingham Chamber of Commerce, although the Council bears financial responsibility for the Group.

The MoJ also disclosed a copy of the template letter that has been sent to the bodies being consulted and a draft impact assessment on the consultation.

Guidance on private email accounts welcomed

2011-12-15T16:22:00.000Z

The Campaign for Freedom of Information welcomed today’s guidance from the Information Commissioner confirming that emails dealing with public authority business sent using officials’ private email accounts are subject to the Freedom of Information Act. The guidance points out that the same is true regardless of where information dealing with official business is held. This is because the Act applies not only to information held by a public authority but also to information held by “another person on behalf of the authority”.

The Campaign’s director Maurice Frankel said: “It's been well understood since the Act came into force that officials couldn’t avoid FOI simply by doing their work on their home computers, using private email accounts or keeping official files under their beds. If it was that easy to avoid FOI, Whitehall would have closed down and government business would be carried out from people’s homes. If people have been deliberately using such techniques to claim that no official records exist, they may have been committing an offence under the Act.”

The Information Commissioner’s new guidance says that where private account emails are used for official business because no official channel was available at the time it should be copied to the authority’s email system. It confirms that on occasions officials may be asked to search their private email accounts for messages dealing with official business, if these are needed to answer an FOI request. It also warns that anyone concealing or deleting requested information in order to prevent its disclosure under the Act may be committing an offence.

See also:
Disclosure rule for private emails set to shake Whitehall - FT 15 Dec 2011 (registration required)
Private email accounts are covered by information law - Martin Rosenbaum's blog post
FOI Man's blog post Privacy, email and clean pants

Campaign makes FOI request about Government's plans to extend the FOI Act

2011-11-09T18:16:00.000Z

During Justice Questions in the House of Commons on 8 November 2011, the Minister was asked about the Government's plans to extend the Freedom of Information Act.

Simon Wright (Norwich South) (LD): What plans he has to increase the scope of the Freedom of Information Act 2000.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): This month we extended the Freedom of Information Act to a further three bodies—the Association of Chief Police Officers, the Financial Ombudsman Service and UCAS. Additionally, we intend to extend the Act to over 100 more organisations through the Protection of Freedoms Bill. We have also begun consultations with more than 200 further bodies about their possible inclusion. Next year we plan to consult 2,000 housing associations and the housing ombudsman.

Simon Wright: I thank the Minister for his response and for the progress made by his Department. As he knows, Network Rail is responsible for spending billions of pounds of public money each year. Will he ensure that that organisation is brought within the scope of the Freedom of Information Act?

Mr Djanogly: The Government are committed to making Network Rail more accountable to its customers, and believe that there is a strong case for its inclusion in the FOI.

The Ministry of Justice (MoJ) news release 'Opening up public bodies to public scrutiny' on 7 January 2011 named some bodies it planned to consult about coverage. But as far as the Campaign for Freedom of Information is aware, the names of "more than 200 further bodies" the minister referred to have not been made public. Neither have the names of the bodies the MoJ has identified as being caught by the extension in the definition of 'publicly owned company' in the Protection of Freedoms Bill. We have therefore made a FOI request to the MoJ for details of these organisations.

The fact that the Housing Ombudsman is being consulted is welcome. The Campaign worked with Lord Wills on an amendment to the Localism Bill which would have brought the Ombudsman under FOI, but the Government did not support it (see earlier post). The Ombudsman and Network Rail were also raised along with other examples of bodies that are candidates for designation by Richard Shepherd MP during a debate on The Freedom of Information (Designation as Public Authorities) Order 2011 (see earlier post).

Speech on future of FOI by Lord McNally

2011-10-24T12:28:00.000+01:00

The Ministry of Justice has published the full text of a speech given by Lord McNally at the Westminster Legal Policy Forum event 'The future of freedom of information - challenges for expansion' which was held on 20 October 2011.

You can download the speech as a Word document here.

Parliamentary debates on extension of the FOI Act

2011-10-21T07:00:00.002+01:00

The Freedom of Information (Designation as Public Authorities) Order 2011 was debated and approved by both Houses of Parliament this week. The Order was made under section 5 of the FOI Act, which provides for the Secretary of State to extend the Act to bodies with public functions or to contractors providing public services on behalf of authorities (where the provision of the service is a function of the authority). The Order designated three additional bodies - the Association of Chief Police Officers, Financial Ombudsman Service and the Universities and Colleges Admissions Service - as public authorities for the purposes of the Act.

The Order was debated by a Delegated Legislation Committee in the House of Commons. During the debate a number of points were made about the scope of the Order and the government's commitment to extend the Act:

Mr Andy Slaughter (Hammersmith) (Lab): We welcome this extension to the number of pubic bodies covered by the Freedom of Information Act 2005 from—to use the Minister’s figures—100,000 to 100,003. We do so because the previous Labour Government were proud of the legislation, and the Opposition remain proud of having introduced it. In fact, the bodies were told that they were likely to become subject to the legislation in March 2010, under the previous Government, as the explanatory notes make clear. The order is clearly a de minimis extension to the number of bodies covered, although the individual bodies are important. Looking at them singly, it seems a logical extension to include each of them...

Secondly, I want to put on record that the substantial problem that I suspect that many colleagues have with the Freedom of Information Act is not the legislation itself, but its selective operation by public bodies, and the variation in responses, which range from helpful and speedy to deliberately obfuscatory and obstructive. That is something that the Government need to look at, because some public bodies—irrespective of party, type of organisation, and whether they are national or local—put more effort into avoiding the provisions of the Act than fulfilling their statutory duties. That is simply wrong. It is an abuse of legislation that this House has passed, and that needs the Government’s urgent attention...

Tom Brake: I will be brief. I welcome the fact that ACPO will be covered by FOI. I always thought that its exclusion was an anomaly, given the role that it plays. At the risk of sounding like a broken record—Members will hear that it is a 78—I hope that Network Rail will feature in the list of 200 bodies that are being considered for possible inclusion under FOI, because many of the issues that surround ACPO also surround Network Rail. The organisation is a recipient and a spender of large amounts of public money. To all intents and purposes, all its activities are in the public domain and should be covered by FOI; so, too, should the increasing number of private contractors doing public works. I wonder whether they will be included in the 200 bodies to which the Minister has referred. We as a Government are spending huge sums of public money on contracts that are delivered by such private companies. They are delivering, in effect, public services, and it would be entirely appropriate for them to be subject to FOI as well...

Mr Richard Shepherd (Aldridge-Brownhills) (Con): The measures announced by the present Government are a welcome improvement to the Act. However, before the election, both the Conservatives and Liberal Democrats promised that Network Rail would also be covered by the Act, and the Conservatives additionally promised to cover Northern Rock, but neither body has been covered. A report by the Public Accounts Committee published in July 2011 concluded that Network Rail, which received £3.7 billion of direct taxpayer support in 2009-10, was “not transparent”...

There are many other candidates for designation, including electoral registration officers and returning officers, whose decisions about voting facilities prevented some from voting at the previous election. They are appointed by local authorities, but have their own legal existence and are not currently subject to the Act. District auditors are another significant omission. The Information Commissioner’s line-to-take document dated 29 August 2006 states:

“Appointed auditors clearly have many of the characteristics of public authorities and it is notable that information relating to audits of central government bodies, which are carried out by the National Audit Office, are accessible under the Act since the NAO is a public authority. The DCA is aware of the apparent anomaly and have told us, on a confidential basis, that consideration is being given to an Order.”

What happened to that consideration?

The responsibilities and powers of the housing ombudsman are to be expanded under the Localism Bill. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the housing ombudsman; complaints about local authority housing go the local government ombudsman. The Localism Bill proposes that, in future, a unified complaints system should apply, with both types of complaint going to the housing ombudsman. Surprisingly, the housing ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the ombudsman under the Act, despite the fact that the housing ombudsman is to take over important responsibilities from the local government ombudsman, who is subject to the FOI Act.

Finally, the public’s right to information is likely to be undermined by some Government policies. Under the NHS reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies that commission services will be subject to the FOI Act, but independent providers will not. The standard NHS commissioning contract contains a clause requiring providers to provide the commissioning bodies with information to help them answer FOI requests, but the clause appears to apply only to the specific information that the contract requires a provider to hold or report. The contract does not cover the full range of information that would be available from an NHS body under FOI.

As functions are transferred from NHS bodies to independent providers, the existing broad FOI right of access is likely to be increasingly constricted. To prevent that, any contractual disclosure provision must reflect the full breadth of the existing access right and not be limited to specified databases, statistics or reports, however numerous they may be. The disclosure provision should extend to any information that would assist in assessing the adequacy of a provider’s services. Furthermore, where a provider’s work consists primarily of treating NHS patients, the provider should be made subject to the FOI Act under section 5 of that Act.

There are similar concerns about the contracting out of local authority functions proposed by the Localism Bill. The more council functions that are carried out by contractors, the harder it will be to rely on the Freedom of Information Act to scrutinise what is being achieved. The Government have so far refused to support potential solutions to that; they prefer to defer consideration of the issue until post-legislative scrutiny of the FOI Act next year, which risks the emergence of serious gaps in FOI coverage in the meantime.

The Order was also considered by Grand Committee in the Lords, during which a number of points about the Act's operation were made, including by the former Speaker of the House of Commons, Lord Martin of Springburn, who raised concerns about journalists' use of the Act:

Lord Martin of Springburn: Many journalists use freedom of information so that they can get what is best described as an angle for their particular story. When they ask the question and there follows a period of, let us say, 27 days-although I may be contradicted on that-I have known it to be the case with matters of the House that they have complained bitterly that the freedom of information was given to them and to the general public. They have complained bitterly that it spoiled their story that everybody else should get the information. Freedom of information is about everybody getting that information. They are on record as complaining; they are using it as a device to get a scoop, or whatever they call it.

I feel strongly that once the information is issued to the applicant for that freedom of information, it should be put in the public domain immediately afterwards. In other words, if the information is given to the applicant at 2 o'clock on a given day, by one minute past two everyone should be able to get that information. I know that some people say that the identity of an applicant should not matter and that you should not know who they are. However, it is a bit rich if an application is made by someone sitting in garret in Toronto, asking for information, which takes a considerable amount of public funding. We should at least know whether a taxpayer of this country is making that application. Can the Minister mention that? It is not fair that someone who has nothing else to do with their time in another country can make an application and no one has to say where they come from. That is very important...

The Minister of State, Ministry of Justice (Lord McNally): I turn to points raised by the noble Lord, Lord Martin, a number of which I thoroughly agree with. There have been journalists who have turned freedom of information into a kind of cottage industry. I again hope that the transparency agenda will make this less necessary, and that people will get the information that they want. I take his point about immediate publication. In pushing forward the agenda we press organisations to publish immediately or as soon as possible. In certain circumstances there may be a reason to consult and delay, but in the main I agree with what the noble Lord, Lord Martin, said. This is not information for an individual journalist; this is public information, and should be made public as quickly as possible.

I was interested in his points about the Republic of Ireland. I was on the pre-legislative committee that looked at freedom of information. The noble Lord, Lord Bach, is nodding; he will recall that one of the most enthusiastic pieces of evidence we received about freedom of information was from the Irish freedom of information director...The interesting thing about that was that the Irish have had post-legislative scrutiny of their own legislation and have brought in a number of restrictions, such as the one that the noble Lord, Lord Martin, referred to. They have brought in charges for some aspects of freedom of information.

The critics of freedom of information say that it puts unfair burdens and great costs on departments, as referred to before by the noble Lord, Lord Martin. I hope that the Justice Committee will take a good look at how the Act is working, take evidence from its critics and supporters, and then take us forward as we have indicated.

It's interesting that Lord McNally refers to "post legislative scrutiny" of the Irish Freedom of Information Act having led to restrictions being introduced to the Irish legislation. In fact, the process of review of the Irish FOI Act was far from open, as the Irish Information Commissioner described in a report to mark the first decade of the Irish Act:

The Review Group consisted of four Secretaries General under the chairmanship of the Secretary General to the Government and, remarkably, conducted its review in secret; it did not seek the views of the public, of any of the parties with a particular interest (such as the media) nor of the Information Commissioner. The review process was the very antithesis of the process which preceded the drafting of the original legislation...The primary urge to amend arose from the fact that, with effect from 21 April 2003, some Cabinet records would have become potentially available under the FOI Act.

A copy of the draft Order, Explanatory Memorandum and Impact Assessment are available here.

MPs debate Hillsborough documents petition

2011-10-21T06:52:00.001+01:00

On 17 October, MPs debated the e-petition signed by over 140,000 people calling for full disclosure of documents relating to the 1989 Hillsborough disaster, in which 96 Liverpool fans died.

The petition was prompted by the Cabinet Office's decision to appeal a ruling by the Information Commissioner ordering information relating to the disaster to be disclosed to the BBC. In April 2009, the BBC made a request for all information provided to Margaret Thatcher in April 1989 relating to the disaster and minutes of meetings attended by the then Prime Minister at which the disaster was discussed.

After a nine-month delay, the Cabinet Office refused the request citing several exemptions, including information relating to the formulation or development of government policy and ministerial communications. The BBC requested an internal review. Following a further seven-month delay, the Cabinet Office upheld it's decision and cited three additional exemptions.

The BBC appealed to the Information Commissioner. On 20th July 2011, the Information Commissioner found that the public interest favoured disclosure and ordered the information to be released. The Commissioner's decision also criticised the Cabinet Office for the "unjustified and excessive delays" in its handling of the request.

Responding to the debate, the Home Secretary, Theresa May, apologised for government's handling of the request and gave a reassurance that the papers would be released with minimal redaction to the families first and then to the general public:

The reason for this debate and for the motion behind it concerns the Cabinet Office’s decision not to disclose papers relating to the disaster in response to a freedom of information request from a BBC reporter. I want to state very clearly that the Government’s position has absolutely nothing to do with attempting to suppress the release of those papers or to somehow hide the truth. I am sorry that the way the Government responded to the FOI request caused anxiety among the families and concern on Merseyside and beyond.

The Government firmly believe that the right way to release the papers is through the Hillsborough independent panel—to the families first and then to the public. The families should have the papers, and they should not have them filtered through politicians or the media. We therefore support the Hillsborough independent panel and today’s motion. We want full disclosure to the panel of all documents relating to Hillsborough, including Cabinet minutes. Those documents should be uncensored and unredacted. Indeed, the full unredacted Cabinet Office papers on Hillsborough have already been made available to the panel. That includes minutes of the meetings of the Cabinet immediately following the disaster...

The Government are not seeking to avoid the publication of Cabinet minutes or any other Hillsborough papers. The Cabinet papers on Hillsborough can be published, and the Government will do nothing to prevent the panel from publishing them or indeed whatever it so decides. The panel will release the full picture of what happened at Hillsborough, but in a way that is respectful of the families.

The panel’s terms of reference envisage minimal redaction to avoid junior officials’ names and addresses being published; to avoid signatures being available for copying; and to ensure that the Data Protection Act is not breached. It might also be necessary to redact sensitively private and personal information specific to the victims. However, it will be the role of the panel to ensure that any redactions are kept to a minimum.

The principle is clear: full publication and minimal redaction, and the panel seeing all of the papers, uncensored and unredacted—as the families have rightly demanded: the whole loaf, not snippets. I stand ready to do anything I can to aid the independent panel in completing its task.

You can read the debate in full here.
See also Martin Rosenbaum's blog posts here and here.

‘FOI Appeal Routes’ Seminar, University of Dundee

2011-10-05T13:51:00.001+01:00

Wednesday 19 October 2011
Dalhousie Building, University of Dundee

While the UK and Scottish Freedom of Information (FOI) laws are very similar, there are some key differences between them – difference which can sometimes have a material impact for the requester or authority involved in the request. One such difference concerns the appeal mechanisms that are in place following a decision of each Commissioner. While appeals under the Scottish Act are made directly to the courts, requesters and authorities in England and Wales can appeal to an ‘Information Rights’ Tribunal. In 2009/10, there were 161 appeals to the Tribunal against decisions by the (UK) Information Commissioner, 62% of which were brought by requesters. In Scotland, during 2010, there were two appeals heard by the courts in relation to Scottish Information Commissioner decisions.

But what impact does this have in practice? Do the different systems lead to different outcomes? Which model best serves the resolution of FOI disputes? Is there anything we would change?

This seminar will consider and explore the appeal mechanisms under both FOI regimes.

Speakers:

Professor John Angel, Principal Judge of the First-tier Tribunal (Information Rights)
The FOI Appeal Process in England and Wales

Christine O’Neill, Partner, Brodies LLP
Reflections on the Scottish model

Rob Edwards, environment correspondent, Sunday Herald
FOI Appeals: the requester’s perspective

A buffet lunch is served at 1pm, and the seminar will run from 2pm to 4pm.

For more information, or to book a place, visit: www.centrefoi.org.uk/

Speaker Biographies:

Professor John Angel
John Angel was the first President of the Information Tribunal. He set up the General Regulatory Chamber in the First-tier Tribunal (FTT) and was its acting President during that time. He is currently a deputy judge in the Administrative Appeals Chamber of the Upper Tribunal and Principal Judge of the Information Rights jurisdiction in the FTT.

John is a retired solicitor who was formerly the Head of Online Legal Services at the global law firm Clifford Chance and before that he practised technology law at Theodore Goddard. He has written, contributed to and edited a number of books and papers on subjects such as computer, telecommunications and electronic business law and has previously held a number of (non legal) management positions in the IT industry. John is also a visiting Professor at the Institute of Computer & Communication Law, Centre for Commercial Law Studies, Queen Mary, University of London.

Christine O’Neill
Christine O'Neill is a partner in the public law and regulatory team at Brodies LLP. She advises a range of clients on information law issues including FOI, data protection and data security and acted for the Scottish Information Commissioner in a number of appeals to the Court of Session. A solicitor advocate, she appears regularly in courts and in public inquiries for public authorities and commercial clients.

Rob Edwards
Rob Edwards has been a freelance journalist specialising in environmental issues for more than 30 years. He has written for New Statesman, The Observer, The Mail, The Sunday Times, Scotland on Sunday, The Scotsman, The Glasgow Herald, the Edinburgh Evening News and many others. Since 1999 he has been the environment editor of the Sunday Herald and a correspondent for New Scientist and The Guardian. He has co-authored three books about nuclear power, and won a series of journalist awards. Since 2005, he has made 242 requests under freedom of information legislation in Scotland and the UK. He lives in Edinburgh, and likes muckraking.

Central government FOI statistics Apr-June 2011

2011-09-29T13:07:00.000+01:00

The quarterly FOI statistics for central government have been published for the period April to June 2011. The figures show that the Cabinet Office, which, along with Ministry Defence, was required to sign an undertaking by the Information Commissioner earlier this year to improve compliance, answered less than half of requests within 20 working days.

Ranked in order of their performance in meeting the 20 working day deadline (number of requests received in brackets), the list of departments is as follows:

Department of Health 99% (417)
Attorney General's Office 98% (42)
Department of Culture Media and Sport 96% (195)
Northern Ireland Office 95% (61)
Department of Work and Pensions 93% (763)
Scotland Office 91% (54)
Home Office 90% (786)
Department for International Development 89% (122)
Department for Transport 88% (710)
HM Treasury 86% (480)
Communities and Local Government 85% (221)
Department for Education 84% (245)
Department for Environment Food and Rural Affairs 83% (150)
Wales Office 79% (47)
Department of Energy and Climate Change 77% (115)
Ministry of Defence 76% (830)
Ministry of Justice 75% (901)
Department for Business Innovation and Skills 74% (256)
Foreign and Commonwealth Office 70% (344)
Export Credit Guarantee Department 69% (36)
Cabinet Office 48% (349)

A number of departments that were on the ICO's first list of bodies monitored between 1 October and 31 December 2010, have improved their performance. These include the Department for Work and Pensions, Home Office and Scotland Office. One of the ICO's criteria for selecting bodies for monitoring is that "less than 85% of requests are receiving a response within the appropriate timescales".

The statistics can be downloaded as a pdf, or in Excel or CSV format.

Commissioner marks International Right to Know Day

2011-09-28T10:43:00.001+01:00

News release: 28 September 2011

Transparency speech marks International Right to Know Day

‘Transparency is not just about what the authorities choose to reveal to citizens; but what citizens have a right to ask to see,’ Information Commissioner, Christopher Graham, said today, in a speech to mark International Right to Know Day 2011.

Information Commissioner, Christopher Graham, said:

“We need to ensure that there is no gap between the right to know rhetoric and the reality of a ‘don’t tell ‘em’ mentality that all too frequently frustrates the citizen.

“I believe that an active and independent ICO can help make a practical reality of the transparency agenda. Not just supporting the direction of travel, but helping to reach a common goal. Delivering a Right to Know 2.0. The reality, not just the rhetoric. The difference between seeing it through - and seeing through it.”

In the course of the video address broadcast on YouTube, the Commissioner set out how the Information Commissioner’s Office (ICO) is already a key player in delivering an effective Right to Know; how his responsibility for both the right to know and the right to privacy enables the ICO to assess where the public interest lies when rights appear to be in conflict; and why the ICO should be an essential partner in delivering the much trumpeted transparency agenda through to practical reality.

Mr Graham also today launched a public consultation on the content of publication schemes – the documents that specify what information public authorities must release proactively.

Speaking about the consultation, he added:

“We will want feedback, not just from public authorities but from members of the public. Our questions will include asking what further classes of information or further detail can be included in publication schemes? And how should publication schemes evolve in light of new technologies?”

Other topics covered in the Commissioner’s speech on the state of information rights in the UK include:
New technologies – the Commissioner says it is ‘vital that the FOI regime responds to the new demand for information online.’
Unstructured data – Mr Graham states that unstructured information – such as emails and memos – are ‘important in delivering accountability and holding public authorities to account.’
Service delivery changes – The Information Commissioner warns that ‘contracting out and the involvement of new providers…must not reduce the citizen’s right to know.’
The ‘balance’ between transparency and privacy – Mr Graham makes clear that ‘just saying there’s a balance doesn’t itself strike the balance. The decisive factor must be a sober assessment of the competing interests...and privacy shouldn’t always be claimed as a barrier to transparency.’
Anonymisation – The ICO is developing a code of practice on anonymisation under section 51 of the Data Protection Act.
Protection of Freedoms Bill – the Commissioner gives the ICO’s view on the information rights aspects of the proposals, including DNA profiling, CCTV and vetting checks.

Press release here.

Transcript of the Commissioner's speech here (pdf).

Consultation document on revising publication schemes here (pdf).

Commissioner orders extracts from note of Blair/Bush telephone discussion to be disclosed

2011-09-27T16:59:00.000+01:00

The Information Commissioner has ordered the Foreign and Commonwealth Office to disclose extracts from a note of a telephone conversation between Tony Blair and George Bush on 12 March 2003, shortly before the decision to go to war against Iraq (Decision Notice FS50341647). The Commissioner found that the exemptions for international relations (sections 27(1)(a) and 27(2)) and ministerial communications (s.35(1)(b)) applied to the information. In respect of information supplied by President Bush to Prime Minister Blair, he found the public interest in withholding the information outweighed the public interest in disclosure. However, for information that wasn't obtained from the US, which concerned the Iraq issue only from the UK perspective, the public interest favoured disclosure.

83. After careful consideration, and in circumstances where the respective public interest considerations are very finely balanced, the Commissioner is of the view that the public interest in maintaining the section 27 exemption to protect the confidentiality of the information provided by the US (in the form of information provided to Mr Blair by President Bush), outweighs, by a significant, but by no means overwhelming margin, the public interest arguments in favour of disclosure of this information, persuasive and weighty though they are.

84. The Commissioner emphasises that his decision with regard to the information contained in the document consisting of information obtained from a State (US) other than the United Kingdom, has been made because the Commissioner believes that the short-term and specific public interest benefits of releasing this particular information (important though they are) would be outweighed by the risk posed to the long-term integrity and maintenance of the relationship between the UK and the US, particularly that between Prime Minister and President.

85. However, the strength of the public interest attached to this specific information is such that the Commissioner considers that the public interest balance (assessed under either section 27 or section 35(1)(b) must be determined differently with regard to the information contained in the document which is not information obtained from the US (i.e. information which does not disclose the confidences given by President Bush, or reveal, directly or otherwise, the confidential information provided to the UK in the telephone discussion.) Once that information (the majority of the information contained in the document) is protected via appropriate redactions, the public interest arguments for disclosure of the remaining information at least equalise (and in the Commissioner’s view appreciably exceed) the public interest arguments in favour of maintaining the section 27 or section 35(1)(b) exemptions.

86. The Commissioner considers that such was the gravity and controversy of the decision by Prime Minister Blair to commit the country to the military action taken in Iraq, then any information which might provide the public with an insight or awareness of the Prime Minister’s thinking during the critical period when the decision was finalised, and its implications for the UK carries with it a powerful and compelling public interest in disclosure. It is for this reason that the Commissioner has decided to order partial disclosure of the information in this case, such disclosure being limited to select extracts of the information which concern the Iraq issue only from the UK perspective, and which do not reveal any confidences or information given by the US, nor prejudice UK relations with either the US, the UN or any other countries.

The original request for information in this case was for records of governmental discussions which took place between the UK, France and the US following the television interview of President Chirac on 10 March 2003. The FCO initially withheld all of the requested information, but disclosed 5 of the 6 documents, including a note of a discussion between Prime Minister Blair and President Chirac, during the course of the Commissioner's investigation, accepting that the balance of public interest had shifted in favour of disclosure following evidence heard by the Iraq Inquiry. The disclosed documents were placed in the public domain on the Iraq Inquiry website.

Commissioner orders partial disclosure of previously vetoed minutes

2011-09-22T13:33:00.002+01:00

The Information Commissioner has again considered whether minutes of meetings of the cabinet sub-committee on devolution from 1997/8 should be disclosed under the Freedom of Information Act. These minutes were the subject of an earlier FOI request made in 2005. The Commissioner had ordered them to be disclosed (Decision Notice FS50100665). The Cabinet Office appealed this decision to the Tribunal, but prior to the Tribunal hearing, the then Secretary of State for Justice, Jack Straw, issued a veto under section 53 of the Act, overruling the Commissioner's decision (see earlier post). This was, and remains, only the second time the veto has been used.

At the time, Jack Straw identified a number of factual disagreements with the Information Commissioner. The Commissioner had found that only 1 member of the Cabinet committee was still in government at the time of the request. Mr Straw said in fact 15 of those who attended committee meetings were still ministers when the request was made. He also disagreed with the Commissioner's view that the policy issues discussed in 1997 were no longer live and that papers provided little insight into ministers' views. The Commissioner published a response to the use of the veto, which suggested that had the Tribunal been given the opportunity to hear the case, it may have found that the government was entitled to withhold some of the information.

In his decision on the new request, the Commissioner states that he "does not rely to any extent on the continued involvement or otherwise of the participants in the Devolution Committee in politics", but he "has recognised the validity and weight of the argument against disclosure on the grounds of preserving the convention of collective Cabinet responsibility".

His conclusion is that this factor [preserving the convention of collective Cabinet responsibility] tips the balance in favour of maintenance of the exemptions in relation to some of the information, specifically content that identifies individual Ministers and other content that in the Commissioner’s view covers what could be fairly characterised as the more sensitive areas of policy discussed by the Devolution Committee. In relation to the content identifying individual Ministers and the content recording discussions on sensitive issues, the view of the Commissioner is that the factor relating to collective Cabinet responsibility continues to carry significant weight. The Commissioner would stress that his decision in relation to information identifying Ministers means that only the content specifically identifying any Minister should be redacted...

In relation to the remainder of the content, the Commissioner considers that its disclosure would not be likely to result in harm to the convention of collective Cabinet responsibility, particularly given the passage of time. The Commissioner considers there to be a specific public interest in disclosure in order to inform current and future debate about devolution and a general public interest in the transparency and openness in decision-making.

The latest decision also upholds the use of the exemption for legal professional privilege in relation to legal advice provided to the devolution committee or to the government itself.

The decision to again disclosure of some of the minutes will be a test for the coalition government and its commitment to transparency. In response to the previous government's veto of the minutes, the Liberal Democrats' then justice spokesman, David Howarth MP, was reported to have said:

This completely undermines Labour's claims to be committed to open government...the veto is clearly a threat to freedom of information and should be abolished.

The Ministry of Justice recently published a revised policy on use of the veto in relation to information falling within the scope of section 35(1). This states:

The Government recognises that the public interest against the disclosure of much material covered by collective responsibility will often be strong, but that the scheme of the Act does not make protection absolute. Accordingly, the drafting of the section 35 exemption reflects Parliament’s intention that in some circumstances, the public interest in relation to information covered by it may fall in favour of release. So in particular cases the public interest in favour of the disclosure of material covered by collective responsibility may prevail.

It then goes on to outline a number of guiding principles, criteria for determining what constitutes an exceptional case and factors to be taken into account when considering whether to exercise the veto.

Effect of NHS reforms on FOI rights

2011-09-13T16:56:00.001+01:00

The Campaign for Freedom of Information has written to the Health Secretary, Andrew Lansley, expressing concern that the public's rights to information about the NHS are likely to be "increasingly constricted" by the reforms in the Health and Social Care Bill.

Under the reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies which commission services will themselves be subject to the FOI Act though the independent providers will not. However, the providers will be contractually required to provide information to the commissioning bodies to help them answer FOI requests.

The standard NHS contract already contains a clause requiring providers to do this. But according to the Campaign, the clause appears to apply only to the specific information which the contract itself requires a provider to hold or report on. While numerous items of information are specified – for example, about the quality of the service, treatment times, complaints, MRSA infections and other matters - it does not cover the full range of information that would be available under FOI from an NHS body itself.

In the letter, the Campaign calls on the government to extend the disclosure provision so that FOI rights in relation to independent providers’ NHS work is as wide as that of NHS bodies themselves. The Campaign director Maurice Frankel says:

“Suppose there is concern about the use of potentially contaminated medical supplies by hospitals. For an NHS hospital, the FOI Act could be used to obtain details of stocks of the product, the number of doses administered, the numbers of affected patients, the quality control measures in place, correspondence with suppliers, minutes of meetings at which the problem was discussed and information showing what measures were considered, what action was taken, how promptly and with what results.

This level of information would clearly not be available in relation to independent providers treating NHS patients. This would represent a major loss of existing information rights."

Read the letter here.

Campaign responds to debate about tobacco company's use of FOI

2011-09-05T11:26:00.000+01:00

The freedom of information request made by the tobacco company Philip Morris to the University of Stirling for information relating to a survey on the smoking habits of teenagers has received a great deal of media attention. It has been extensively covered by The Independent and was discussed on a number of radio shows last week.

An article by Maurice Frankel, director of the Campaign for Freedom of Information, published in The Independent defends the "applicant blind" principle of the Freedom of Information Act and suggests that the threat of disclosure may not be as severe as researchers fear:

Are tobacco companies abusing freedom-of-information laws by asking for the raw data obtained by academics studying teenage smoking? Research funded by a cancer charity trying to reduce smoking is being sought by a giant tobacco company keen to recruit users to its lethal products. Not surprisingly, the requests are highly contentious. But is the threat as severe as it seems?

A problem for Stirling University's Centre for Tobacco Control Studies is that our FOI laws are designed to be "applicant blind". Decisions depend on whether information can safely be made public – not whether it should be released to the specific requester, however much it may be abhorred.

That principle is important. It means that an authority cannot refuse a request because the applicant is opposing its policies, criticising its competence, challenging its decisions in court or, in the case of an opposing political party, trying to replace it in government. It cannot withhold complex data because it claims the requester lacks the ability to understand it – or withhold from a campaigning journalist what it hands over to a pliant hack.

...The researchers have argued that if they are forced to hand over the information (presumably even in anonymised form from which subjects could not be identified), funders will be reluctant to back them, other academics will not share data with them and teenagers will refuse to be interviewed in future.

If this is true, then a specific exemption in the Scottish FOI Act may apply. This allows information collected during a continuing programme of research to be withheld if future reports are planned and disclosure would substantially prejudice them. The exemption is subject to a public-interest test. Other exemptions, such as breach of confidence, may also apply. This means the "catastrophe" the researchers warn about may not be imminent at all.

David Goldberg, a spokesperson for the Campaign for Freedom of Information in Scotland has also had a letter published in The Herald:

The battle for freedom of information is ongoing, sometimes on fresh fronts (Ian Bell, The Herald, September 3).

Fundamental FOI principles are worth restating.

First, requests should be treated as applicant (and motivation) blind. The implication of Mr Bell’s article is that Philip Morris International’s request should be refused because PMI are hateful poisoners. But, if that approach were adopted how long would it be before anyone is refused by an authority which finds their views dangerous or merely unacceptable?

Secondly, information should be disclosed unless it would be substantially damaging to make it public, regardless of who requests it. If Stirling University is not exaggerating what it says would be threatened by disclosure, and can demonstrate that, then the university may be able to satisfy various exemptions, including maintaining any confidences owed.

If, on the other hand, the university are exaggerating their case, the information would have to be disclosed, and rightly so.