FOIMan observes that for all the legislation and talk of transparency over the last 10 years, it seems ever harder to find information about our public authorities. FOI was supposed to open up our public bodies. They were supposed to publish information proactively and to answer
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 observes that for all the legislation and talk of transparency over the last 10 years, it seems ever harder to find information about our public authorities.
FOI was supposed to open up our public bodies. They were supposed to publish information proactively and to answer requests from the public. Since FOI came into force, there have been other laws and initiatives all of which claimed to make publicly funded organisations more accountable. And yet every time I want to get hold of information, or get help with something, there seem to be more barriers than ever.
Let me give you an example. We want to carry out some building work on our house. Most of the work is internal, but we also want to make a minor change to the shape of the roof. Despite weeks of reading and re-reading the local council’s guidance on planning rules, we cannot work out whether we need planning permission. So we emailed the council and asked. Their response was that they couldn’t advise unless we paid for a pre-planning advice service. We decided to do this as we didn’t want to come up against problems later. Today Mrs F went to fill in the form that the council had sent us. At the top of the form in large unfriendly letters was the statement: “DO NOT USE THIS FORM TO ASK WHETHER YOU NEED PLANNING PERMISSION.” So the form we were told to use to seek advice on whether we needed planning permission tells us not to use it for that purpose. Attempts to speak to the council resulted in being left in a queue until eventually giving up. We want to do the right thing – are prepared to pay just to be told what the right thing is – but the council seems determined to avoid telling us anything useful.
I’m currently trying to find out who to market my services to in a range of public authorities. All I want to know is the relevant department, a job title and maybe a name of someone in Human Resources or Information Governance that I can send my sexy new leaflet to. I’m trying to find the people who manage FOI, or at least the ones who organise their training. But almost without fail, websites of public authorities now give very bland information and generic contact details. I’m having to guess. Of course, I could make FOI requests to find out, but surely it’s easier for them as well as me if they publish the details online?
I appreciate that some of you will have little sympathy for those wanting to send them marketing literature. But I would experience exactly the same if I was wanting to discuss my FOI request or a problem with service provision.
This appears to have got worse since FOI and recent transparency regulations. We’ve seen it with gov.uk – I’ve moaned about that before – but it’s spreading throughout the public sector. It’s one thing providing workflow services for various specific activities like ordering a new passport. Or publishing thousands of datasets. But if you, as a regular citizen, have questions or need help that doesn’t fit that model, you’re – forgive me – screwed.
There are tons of requirements now for transparency – not always complied with (I’ve seen at least one council site which appears to have given up on publication schemes altogether). But whilst there has undoubtedly been progress in some areas, in other ways things appear to have got worse. Often it’s the very measures designed to help that get in the way. Websites are increasingly designed to cut down on “clutter” (i.e. useful information) and focus on the delivery of the service rather than its organisation. But both these aims conflict with any attempt to resolve problems or do something the authority hasn’t predicted. Similarly the growth of “one-stop shops” has led to an inflexible workflow approach to almost any attempt to interact with some public authorities.
This is going to seem an odd thing for me to say, but it’s as if FOI and transparency rules are contributing to the problem. It seems to encourage an attitude of compliance and nothing more. If you want to find out the name and salary of directors at the council, you can find that – because it’s a requirement of the Local Government Transparency Code. But if you want to find out who to speak to about a planning matter, or even FOI, it’s almost impossible to find their contact details.
Transparency isn’t just about publishing what the government says you should. Nor is it about answering FOI requests within 20 working days. It’s about an attitude, a behaviour, which says we’re here to help. It’s about making it as easy for the public to see how decisions are made (and indeed to get decisions made) as possible and being proud to do so. It feels like public employees are increasingly hidden behind websites, rules and workflows. I suspect many of them would be as pleased as the rest of us if some of those barriers could be torn down so that they can do what they joined the public sector to do – help people.
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.