How safe is FOI?

FOIMan reviews the state of FOI in the UK at the end of the last party conference season before the 2015 General Election.

House of Commons

House of Commons

It seems like only yesterday that I coined the hashtag #saveFOI when, provoked by the launch of the government’s post-legislative scrutiny, it seemed that everybody and their uncle wanted to pile in with their FOI horror stories. And a few months later I was – largely – relieved to find that despite the naysayers, the Justice Select Committee had recommended few changes to the Act. Indeed they had focused on its achievement as “a significant enhancement of our democracy”.

The attacks, of course, have not gone away. Whether it be dragons or criminals attempting to give bananas the slip, some public authorities have been keen to bring FOI into disrepute. Their hope is that these stories will make it politically acceptable for the government to weaken our right to know.

And these are dangerous times for constitutional rights, of which I count FOI as one. We’ve seen that the Conservative Party is keen to dismantle the current human rights infrastructure, apparently because the government hasn’t got its way over one or two decisions made by the European Court of Human Rights. If human rights aren’t safe, it’s a fair question to ask if other rights – less complicated to remove or weaken – will also come under renewed attack. And from whom?

The most pressing threat is the possibility that the government might – as it proposed to do in its response to the post-legislative scrutiny – amend the FOI fees regulations to make it easier to refuse requests. However, a recent interview with the Minister for FOI, Liberal Democrat Simon Hughes, appears to suggest that the threat has been stayed somewhat. Mr Hughes indicated that a consultation on this is likely before the 2015 election, but actual changes were unlikely until after then. It appeared from the interview that the two parties in government were failing even to agree on the content of the consultation. So even that is in doubt.

Another significant threat is the failure to properly fund the Information Commissioner’s Office. As I’ve previously highlighted, Christopher Graham himself has indicated that FOI enforcement is at risk without a new settlement. The ideal solution would be to find a way to independently fund the Commissioner’s work, rather than him having to go cap in hand to a government department that he often has to rule against.

It is entirely possible that a new government next May could find other ways to undermine FOI. As the last party conference season before the general election has come to its conclusion, what can we say about how safe – or otherwise – our right to know will be next year?

First of all, it’s not unreasonable to be sceptical about any of the parties that are likely to form a government next year. At various points they have all exhibited ambiguous attitudes to the legislation, especially when in government. But I do think we can draw some conclusions. Let’s take each of the main parties in turn.

The Labour Party, of course, introduced the Freedom of Information Act whilst in power. But famously the Prime Minister of the time has expressed his regret, believing it (with the ban on fox hunting) to be one of his two worst decisions. It’s been repeated enough now for us not to choke on our tea with the irony. However, the current Shadow Justice Secretary, Sadiq Khan, has made several positive noises about FOI, including vowing that it will be extended to private companies that provide public services – a promise repeated during the Labour Party Conference in September. This doesn’t mean that a Labour government with a healthy majority won’t lose its enthusiasm for the right to know once in power, but at least Mr Khan appears to be proud of his party’s part in the story of FOI rather than considering himself to be a nincompoop.

Simon Hughes’ conference speech this week claimed that the Liberal Democrats were trying to extend FOI now. His speech, as well as the interview with Martin Rosenbaum mentioned above, hints that the junior party in the current coalition has protected FOI from their partners in government. In this context it is worth noting that many observers were surprised at the relatively positive conclusion to the post-legislative scrutiny. It seems plausible that this was as a result of the canny chairmanship of Sir Alan Beith, a Liberal Democrat. My sense is that broadly speaking FOI is safest with Liberal Democrat involvement in government.

What about the Conservatives? They don’t appear to have said much at their conference on the subject. But in the past their leader has expressed his irritation with FOIs “furring up the arteries” of government. His idea of “real FOI” is government deciding what you should be allowed to see. That phrase was echoed last week when the Conservatives talked about “real human rights”. Not all Conservatives are enemies of FOI though. Eric Pickles has criticised local authorities who moan about their FOI obligations. Overall though – and looking back at the evidence given to the post-legislative scrutiny in 2012, and the MPs who appeared most skeptical – I don’t sense much enthusiasm for FOI in the Conservative Party (aside from when they were out of power when they used it enthusiastically, of course).

So there we are. It would appear that FOI would be safest with Labour or the Liberal Democrats (and most safe with both). Of course, we’ll know more when party manifestos are issued early next year. Maybe the Conservatives will prove me wrong by offering to protect and extend FOI in the next Parliament.

What makes FOI effective? FOI Officers do

FOIMan tells civil servants that FOI practitioners deserve credit for FOI’s success over the last ten years.

The National Archives in Kew, south-west London

The National Archives in Kew, south-west London

Earlier today I was pleased to speak at an event organised by the UK National Archives in Kew, south-west London, for central government information managers. The topic of my talk was “Ten years of FOI: what makes FOI effective?”.

The pedantic amongst you may point out that FOI is actually almost 14 years old, but of course the 10 years refers to the commencement date of the right of access to information which was 1 January 2005.

I decided not to give a potted history of FOI (partly because I knew that the following speakers, Dr Ben Worthy and Maurice Frankel, would do a much better job), but instead chose a number of anecdotes from my time as an FOI Officer. Some of them I’ve referred to here before. They included requests for information about the Olympics which caused angst for LOCOG and the IOC; a surprising request for correspondence about pandas; and perhaps the most surreal experience of my career – sitting in a room in Buckingham Palace discussing an FOI request whilst bear-skinned guards marched past performing popular tunes for crowds of tourists.

A key theme of my address was the difficulties that FOI officers have encountered over the last decade – and how they have successfully risen to them. The ever increasing volume of requests has been well documented, but those coordinating FOI activities in public bodies have also had to champion the legislation’s requirements often in the face of opposition from colleagues and those in high places. One audience member was keen to point out that senior officials’ views are often helpful in identifying sensitive information, and of course this is true. But nonetheless it often falls to relatively junior FOI officers to explain that it will not be possible to deny access to that  material. And the reaction to unwanted advice has on occasions been to shoot the messenger.

But despite these difficulties, FOI has changed the culture of government departments and public bodies. Although we hear many examples of responses being delayed and documents being withheld unreasonably, vast amounts of information have reached daylight. In some cases surprisingly so, especially given attitudes back in late 2004. There are lots of reasons that can be put forward for this, but I believe that a really significant one has been the growing professionalism, experience and knowledge of those who are answering the requests. They display integrity in their management of FOI requirements. They haven’t just accepted the status quo; they’ve helped push the transparency agenda, even when it made their jobs difficult. Even the relentless rise of requests is a positive sign – people recognise that FOI can and does work, otherwise they wouldn’t bother. FOI officers have helped FOI to make a difference.

They have made FOI effective.

Thanks to the National Archives team for organising a really interesting and successful event, and for asking me to speak.

 

BCS you’re worth it… (sorry)

FOIMan reflects on going from student to master in a very short period.

As regular readers will know, this year has seen a big change in my career. Up until last Christmas I was an FOI Officer who did the odd bit of training in his spare time. In January I left that all behind to become a full-time freelance trainer and consultant.

One of the things that I was most nervous of as I looked down my list of bookings from Act Now Training at the start of the year (who still provide me with the vast majority of my work, and are a pleasure to work with) was delivering Act Now’s course for the British Computing Society’s formal qualification in Data Protection earlier in the summer. It was only a couple of years ago that I undertook the course as a student and it was a challenge then. I’ve written a piece for Act Now Training’s blog on making the transition from student to tutor.

As it happened I ended up delivering both the Data Protection and Freedom of Information courses, and in the end I thoroughly enjoyed tutoring it. I’m still learning – about training, as well as about my supposed areas of expertise – but that’s part of the fun, and working with students to get to grips with some of the more complicated and controversial aspects of information rights has certainly helped me. I’ll find out if it helped them when the exam results come out next month! But the feedback at the end of each course was thankfully really positive and most people seemed to enjoy it, even if they were nervous about the exam.

Next month I get back from my holidays, stepping out of the resort swimming pool and plunging straight back into a new set of BCS courses – this time in Belfast. So Northern Ireland readers contemplating a qualification in FOI or DP, please do consider joining me! If you’re not in Northern Ireland or can’t afford it this time, do take a look at Act Now Training’s course schedule and it would be great to see you on a future course. I’m also running a BCS course in-house for one of their clients, so if there are enough of you interested in your organisation, you may want to explore that.

I hope you’ll excuse the odd post like this one updating you on progress with my new business and – of course – plugging some of my courses. After all, they help keep me fed and watered so that I can provide other useful stuff here on the blog. And if you know anyone who is looking for training or help with data protection, freedom of information or records management, please do point them in my direction!

The Exemption Index: Section 42 – the exemption for legal professional privilege

Exemption Index logoFOIMan examines the exemption protecting legal advice.

Summary

If you’re being sued, you will no doubt want to seek legal advice. Even if you’re not, but you want to make sure your activities are compliant with legal requirements, you would want to seek such advice.

There is an established convention that such advice is confidential, with good reason. If you ask for advice, and the advice comes back saying that your case is weak, you don’t want those who might litigate against you to get access to it. It’s up to their lawyers to make the case against you. If you thought that adverse advice might be disclosed, you probably wouldn’t ask for it in the first place, as it could leave you in a weaker position.

That’s why there is an exemption to cover this. But perhaps surprisingly, it is subject to a public interest test. So in some cases, it might be disclosed.

Information affected

Advice (and requests for advice) from solicitors, barristers or legal executives.

Things that FOI Officers need to know

  • there are 2 types of information covered by legal professional privilege – litigation advice and legal advice
  • be clear who the client is, and who is giving the legal advice
  • keep it to yourselves – if the advice is shared beyond those it is given to, there is a risk that it could be said that the advice is no longer confidential (and therefore no longer protected by privilege)
  • information that already existed before the advice was sought (to give an FOI-world example – a document that has been requested under FOI that you have sent to an in-house lawyer for their opinion on whether an exemption might apply) will not be protected by legal professional privilege, but if the information (perhaps in the form of an attachment or enclosure) has been prepared specifically to support the legal advice then it would attract protection.
  • if it is legal advice that has been kept confidential there is a very good chance that it will be exempt – whilst there is a public interest test, both the Commissioner and Tribunals agree that there is a substantial public interest in maintaining legal professional privilege
  • That said – there are factors that might weigh in favour of disclosure – see below.

Things that requesters need to know

  • whilst it is recognised that there is a substantial public interest in maintaining privilege, the very fact that s42 is qualified means that in some circumstances legal advice will be disclosed
  • as always, timing is a factor – if the risk of litigation has lessened, then there will be less of a public interest in maintaining the exemption
  • if the advice is not on an issue affecting individuals, it has been argued that the public interest in withholding it will be lessened
  • if the substance of the advice has previously been disclosed in an unrestricted manner, it may be that firstly legal professional privilege may not apply; but that even if it did, the public interest in withholding it is reduced.

Essential case law

Recommended reading

FOIMan News to 11 August 2014

NEWS1FOIMan highlights the latest news stories around freedom of information and information rights.

Requesters can specify file format says Court of Appeal

Section 11 of FOI requires public authorities to make information available in a form specified by the requester if “reasonably practicable”. Up to now, the accepted view of the Information Commissioner and public authorities has been that this merely allows a requester to specify whether the information should be supplied in paper or electronic form. This latest decision – which sets a precedent that the Commissioner and future Tribunal hearings will have to follow – rejects this. Lord Justice Underhill took the view that format is “an aspect of the “form” of the information.” So in future public authorities will need very good reasons not to provide information in a particular format (e.g. Microsoft Excel) if it is requested in that format. A more detailed analysis is provided by Christopher Knight on the Panopticon Blog.

Social media publication does not automatically trump data protection

In a controversial decision in 2012, the First-Tier Tribunal ruled that the names of members of a “Youth Council” set up by Surrey Heath Borough Council should be disclosed if their names appeared on a Facebook page that had been set up for the Youth Council. The view was that because the names had been made public, this meant that the council members had no right to protection of their identity. The Upper Tribunal’s decision in Surrey Heath Borough Council v IC & Morley (this copy of the judgment is available via the Panopticon Blog) overturned this view. Judge Jacobs argued that the FTT had been too simplistic. For example, he pointed out that there was no evidence that the individuals had agreed to their names being published on Facebook. In most circumstances where public authorities are considering the disclosure of personal data, they have to assess whether there is a legitimate interest in making it available and whether disclosure would cause the individuals concerned unwarranted prejudice. Judge Jacobs concluded that there was no legitimate interest in the publication of the names. Although he ruled that the information should be withheld in this case, he did make clear that this was based on the facts in this particular case; he also set out a useful test for future decisions involving the personal data of young people.

New regulations attempt to enhance local authority openness

The Openness of Local Government Bodies Regulations 2014 are the latest attempt by Eric Pickles, Communities Secretary, to further open up local government. Councils have to allow filming of council meetings and “reporting and providing commentary on proceedings at a meeting, orally or in writing, so that the report or commentary is available as the meeting takes place or later to persons not present” (or more succinctly, they have to allow people to live-Tweet from meetings). In addition, local authorities have to record certain decisions and make them available. The regulations make it a criminal offence to obstruct or refuse a request for such a record of a decision.

Blogpost of the Week

Giles Peaker writes on the Nearly Legal housing law blog about the possible implications of the Openness of Local Government Bodies Regulations 2014.

 

FOIMan can deliver training in Freedom of Information, Data Protection and other information rights issues in your own premises. Get in touch for further details.