FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations. On 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob
FOIMan writes for PDP’s Freedom of Information Journal on the “ten things FOI requesters hate most” about the way public authorities handle their requests. Those of you working for public authorities – FOI Officers and others – work hard, I’m sure, to get FOI responses
FOIMan comments on the Budget. Well, one particular aspect with data protection implications anyway… George Osborne, I’m sure, pleased all of us who work for ourselves when he announced in the Budget that annual tax returns were being abolished. Unfortunately, it turns out he still
FOIMan comments on a revealing annotation to a request made via WhatDoTheyKnow.com. In my experience, one of the most common causes for a FOI response being delayed is one that many FOI Officers are reluctant to publicly acknowledge. It is that often colleagues are less than
FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations.
On 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob Evans made Freedom of Information requests to government departments for correspondence with Prince Charles, the heir to the throne. Ten years later, the Supreme Court has finally ruled that those letters (or many of them at least) must be disclosed. The full story of those ten years – together with many of the key court decisions – can be read in Matt Burgess’s excellent piece on the FOI Directory site.
This ruling is important – and for me, pleasantly surprising. After the Court of Appeal considered this case last year, I gave my analysis on this blog, and it turns out I was wrong. Though not entirely. My prediction was that the Supreme Court would rule that the veto was legitimate in relation to information subject to FOI, but that the European law that underpins the Environmental Information Regulations (EIR) would lead to a ruling that the veto cannot apply to environmental information. As it turns out, the Court ruled that the veto was not legitimate in either case, though there was more support from the Justices for the veto not applying to EIR (6:1 as opposed to a 5:2 ruling on the use of the veto in relation to FOI).
Huge congratulations are due to Rob Evans and the Guardian. Rob and the Guardian have been persistent in pursuing the release of the letters, even when all around (or many of us) were sceptical of their success. But I now want to consider the implications of this judgment for FOI and EIR.
Firstly, what does this mean in terms of the release of correspondence between members of the Royal Family and public bodies? One of the reasons that this case is so important is that it is now pretty much the last chance any of us will get to see what is said in correspondence like this, unless it is leaked (or relates to environmental matters – see below). This is because FOI was amended in 2010 – during the wash-up of the last government – to make the exemption covering relations with the monarch and their two nearest heirs absolute. This means that the government and other public bodies will be able to refuse all future requests for correspondence with Prince Charles under FOI. This ruling will not change that. But at the time of Rob Evans’ request, the exemption was subject to a public interest test, and that is how we have reached this point. If the correspondence is released, then that will be the last FOI disclosure of Prince Charles’ letters.
That said, the ruling is significant in terms of environmental information. Given the Prince’s known interest in environmental matters, it is likely that public bodies will hold many letters from the heir that would fall under the EIR. All the exceptions (the EIR equivalent of exemptions) under EIR are subject to a public interest test, and this judgment makes clear that Ministers cannot exercise the veto in relation to any decision to disclose information falling under EIR. So we may well see future disclosures of correspondence from Prince Charles relating to environmental issues.
But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.
It says that it is not enough for government ministers to disagree with Commissioner, Tribunal and Court rulings on FOI – the use of the veto has to be justified:
“…it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal.” para. 68 of the judgment
But it also confirms the view expressed by the Lord Chief Justice in the High Court decision on this case that the veto itself is “a constitutional aberration”. The ability of the executive to overturn the decision of a court of law:
“…would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.” Press Summary
So the effect of this ruling is to call into question almost all use of the veto, certainly up to this point, and potentially in the future. This is a huge defeat for the government.
Without wanting to pour cold water on well-deserved celebrations, that is exactly the reason why I think we need to be cautious. Governments don’t like huge defeats. And the veto has been used by both the last two governments. David Cameron has already released a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable. Speaking at 11KBW’s Information Law Conference last week, barrister Tim Pitt-Payne, who has represented the Commissioner as well as government departments in FOI cases, expressed his view that if this ruling went against the government, it was likely to reopen the question of the application of the section 35 exemption for policy formulation. When the Justice Select Committee examined FOI three years ago, it decided that section 35 didn’t need to be strengthened, as the veto provided a backstop for government if it needed to protect internal discussions.
Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.
FOIMan writes for PDP’s Freedom of Information Journal on the “ten things FOI requesters hate most” about the way public authorities handle their requests.
Those of you working for public authorities – FOI Officers and others – work hard, I’m sure, to get FOI responses out as soon as possible. And no doubt you do your best to keep the customers satisfied. But we can always do more, and a bit of constructive feedback can help us to improve.
But how do you get that feedback? Sometimes requesters ask for an internal review, but often they don’t. So we have to find other ways to get inside the minds of those who want to know more about our organisations. How? Well, what do most of us do these days when we’re annoyed with somebody? We Tweet about it, of course!
I’ve saved you some time by trawling Twitter, WhatDoTheyKnow and other sources to identify the behaviours that cause our requesters the most annoyance. It’s completely unscientific, but you can read what I came up with in my latest piece for PDP’s Freedom of Information Journal. If you’re a subscriber, your copy of the journal should be landing on your doormat (or in your inbox) right about now.
FOIMan comments on the Budget. Well, one particular aspect with data protection implications anyway…
George Osborne, I’m sure, pleased all of us who work for ourselves when he announced in the Budget that annual tax returns were being abolished. Unfortunately, it turns out he still wants the tax.
Therein lies the problem. How will HMRC know how much tax you owe if you don’t fill in a form telling them how much you earn?
Presumably it will require an IT system to collect and make sense of all the data. A big shiny new online database. Where have we heard that before? Anyone remember NHS databases, ID cards, care:data, gov.uk – the government-wide website that makes it almost impossible to find anything? Big government IT projects don’t have the best reputation. If you’re not feeling nervous by now though, let’s remember that this is the same HMRC that lost the personal details of 25 million families a few years ago.
How would it work? It seems to me – having only been self-employed for less than 18 months – that one way or another, HMRC will need to access our bank records. Either they would have a direct feed, or would obtain a report once a year. What’s the problem?
Well, I’m a sole trader. Like many sole traders, I use my normal current account to do all my banking – business and personal. I keep records of my business spending so that it’s easy to separate it out when I come to do my tax return. But what will happen now? Will HMRC have access to everything whether or not it’s business related?
I’m perfectly happy for the Treasury to know about my £49 spent on a night at Premier Inn before I delivered a training course. I might not be so happy for them to know about the £5.99 I spent in Boots on “Chemist Goods”. Or the £120 I spent in Majestic Wines at the weekend (or at the Dog & Duck Pub – take your pick). Perhaps I’ll need to set up a new business bank account to preserve my privacy – for which I’ll have to pay a fee.
It would certainly be desirable for the current process to be streamlined, and I’m not against what the Chancellor is proposing in principle. But if it is to avoid the problems encountered with other government IT projects, HMRC would be well advised to carry out (or ideally to have already carried out) a privacy impact assessment (I’ve provided a link to the Information Commissioner’s Code of Practice on Privacy Impact Assessments in case they need it). Will we self-employed be consulted to establish issues like the ones I’ve raised above? How will the data be secured? Who else will have access to it, and for what purposes? No doubt this data will have value to others – but should they be allowed to use it?
All good questions, and ones that should be asked sooner rather than later. Perhaps they already have been, and I’m worrying about nothing.
FOIMan comments on a revealing annotation to a request made via WhatDoTheyKnow.com.
In my experience, one of the most common causes for a FOI response being delayed is one that many FOI Officers are reluctant to publicly acknowledge. It is that often colleagues are less than cooperative. This can take the form of outright refusal to provide information; of foot-dragging; or simply of being awkward and aggressive. All of this goes on behind the scenes and is rarely exposed to sunlight. After all, FOI Officers have to remain professional and maintain good relations with their colleagues as far as possible.
So we can be thankful to one academic who has thoughtfully published the internal email correspondence between themselves and their FOI Officer on the WhatDoTheyKnow website. The cause of this was a freedom of information request made through the site for the academic’s expense claims. They note that they are “far from impressed” with the handling of the request and that “‘work’ is often self-inflicted” by public bodies based on their experience. They ask us to “be the judge”. So let’s do that.
The request was received on 30 January, and acknowledged on the 3 February. On the same date the academic – a professor – was informed of the request, and asked “Would you please advise how we should handle it?”. The response at first sight seems somewhat sharp to send to a colleague:
“I’m not sure what you are asking. If it’s guidance on how to answer FOI requests then I would have thought the university’s FOI Officer would know how to do their job. If not, they could do worse than to read my book…”
What I strongly suspect the FOI Officer was attempting to do here was to consult the professor as to her views on disclosure – as advocated by the section 45 Code of Practice. In any case, it’s good manners. But it was worded a little loosely, so it’s kind of the professor to volunteer her assistance, even if it does take the form of a plug for her own book.
There is subsequently a delay. Let’s remember that FOI Officers are dealing with lots of requests at the same time, not to mention having other responsibilities. So there may be good reasons why they don’t immediately come back to the professor. On the other hand, perhaps the response to their first email has made them reluctant to re-engage.
When they do write again to their academic colleague, they thank them for their email – which is very nice of them in the circumstances – and advise that “[T]he University will withhold information on your expenses on the grounds of Section 40(2) Personal Data.” Is our professor happy to hear this? Not a jot of it:
“That seems a rather defensive position to take. Surely the first step in such requests is to ask the staff member whether or not they object to the information being disclosed. If they don’t then publish.”
The observant amongst you will note that the FOI Officer has already asked the professor – two weeks previously – how they want the request handled. And they don’t appear to have answered yet.
They do, however, go on to explain – you can almost hear the grinding of the gritted teeth that they’re talking through – how the FOI Officer should handle the situation should the staff member object. The professor of course being the staff member here. Still no indication of her actual view on disclosure though. She helpfully refers the FOI Officer to an Information Tribunal case. Not just any Tribunal case though: “my Information Tribunal case”.
It’s worth noting here that whilst it is common practice to disclose expense claims by those in senior management positions, it is certainly not routine to do this for other members of staff. The Information Commissioner’s definition document for higher education institutions requires universities to publish totals claimed by “senior staff” – and defines this as staff earning over £100,000 per annum and on the senior management team. In my time as a FOI Officer in higher education I don’t recall ever dealing with a request for expenses claimed by academics outside senior management. A quick perusal of WhatDoTheyKnow confirms that such requests are rare. Recently the Commissioner accepted before the First-Tier Tribunal that academic salaries were exempt from disclosure in a particular case. I don’t know what academics at this university are told about their expense claims, but given the above, they may have been led to expect that disclosure was unlikely. If this is the case disclosure could well be unfair, which would support the use of the s.40(2) exemption to withhold expense claims by academic staff. So in the absence of a clear, unambiguous statement from the professor that they are content for their claims to be disclosed, I can understand why the FOI Officer would have proposed to withhold the information. They are not being defensive, merely adopting a default position that is perhaps reasonable in the circumstances. In any case, all the professor has to do is indicate that they don’t want their expense claims to be withheld and they can be released (which they know, as the quote above illustrates).
No doubt occupied with other requests and duties, the FOI Officer takes a little while to go back to the academic again. By this point, they have started to suspect – again, without very much to go on – that the professor may want to disclose her expenses. So they ask whether she has claimed any.
Her academic colleague takes umbrage at being referred to as a “Visiting Professor”. Her pride apparently wounded, she questions why the information is not being sought from the university’s systems, and goes on to add:
“The way this request has been handled has not filled me with a great deal of confidence in the competence of the university’s FOI Office. I can only imagine the negative impression given to the applicant. It has been a useful experience, however, to see how the system works (or rather doesn’t) from the inside.”
I don’t know why the information wasn’t being sought from the university’s systems. Perhaps the FOI Officer had already attempted to, had found nothing, and wanted to confirm this with the professor. Maybe – and boy, I can relate to this – they had experienced problems with data obtained from the finance systems previously and thought it might be easier to go straight to the horse’s mouth. But I do know one thing. The professor hasn’t answered the question. Or indeed, given their consent for the information to be disclosed.
I’ve been a little flippant thus far, but I do think this illustrates a real problem for FOI Officers. If you take the handling of any FOI request out of context, you will see delays, and maybe questions that don’t make sense to the outside observer. It rarely helps improve matters to put individuals under pressure from the start by being unnecessarily unpleasant to them or publicly questioning their competence. It certainly doesn’t help if colleagues repeatedly fail to answer questions put to them by FOI Officers in their organisations trying to prepare responses.
At best, the attitude displayed by this academic shows disrespect for a colleague trying to do a difficult job. At worst, it has contributed to delaying the response to the requester – the response is now overdue. The professor may be able to point to failings by the university’s FOI office, but she hasn’t exactly helped them. In her commentary on the request, she comments that the FOI Officer failed to pick up the phone – but it doesn’t appear that she has attempted this herself. At every stage she had the opportunity to indicate her willingness for the information to be disclosed, but instead chose to score points off a junior colleague, apparently to make a political point.
Rudeness may be understandable – though not really – in someone who resents FOI, forced into the sunlight reluctantly. But if you’re someone who professes to champion FOI and has made their name by using it to hold others to account, you would think that you’d do everything in your power to assist a colleague to meet the Act’s obligations. So it’s odd that the academic at the centre of this sorry tale is one Heather Brooke – famed for being one of the journalists who pursued the disclosure of MPs’ expenses. By adding her annotation to WDTK it cannot be denied that she has enhanced transparency, but I’m not at all sure that it exposes what she intended.