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FOIMan News!

FOIMan launches a monthly newsletter to keep you up-to-date with all the latest news on freedom of information and related subjects. Here’s how – and why – to subscribe. It can be hard keeping up with the fast moving world of information rights. With everything else

Mr Gove’s Internal Review

FOIMan explains why he is worried for the future of FOI as a result of the Justice Secretary’s comments yesterday. News reports over the weekend suggested that the new Justice Secretary, Michael Gove, was planning a renewed attack on FOI. Well now we know for certain. Speaking in

FOI-avoidance or good records management? Cabinet Office Email Policy

FOIMan wonders if 90 day retention of email by the Cabinet Office is a conspiracy, or if it could be a (clumsy) attempt at governance. The FT has a piece this morning stating that the Cabinet Office routinely deletes email after 90 days. It argues that

Whitehall Ornithology

FOIMan considers whether Government departments discussing “round robin” requests is surprising…or wrong. An interesting post from Matt Burgess on his FOI Directory site this morning highlights the fact that government departments compare notes on so-called “round robin” requests. Round robin requests are questions that are sent

New FOI Media Masterclass Launches

FOIMan announces the launch of an exciting new Masterclass in FOI for journalists and the media. I’m very excited to announce a new collaboration between FOIMan and the creator of FOI Directory, journalist Matt Burgess. Matt’s new book Freedom of Information: a practical guide for

FOIMan News!

FOIMan launches a monthly newsletter to keep you up-to-date with all the latest news on freedom of information and related subjects. Here’s how – and why – to subscribe.

logoshirtIt can be hard keeping up with the fast moving world of information rights. With everything else that’s going on you might miss announcements about the future of freedom of information (FOI), data protection and other information compliance and management issues.

What’s more, FOIMan provides an increasing number of free resources, as well as training opportunities and other services for practitioners and users alike, that you may miss out on amongst the twittering out there. Not to mention blogposts, of course.

So from July 2015 onwards I’m going to put together a monthly update of the most significant information rights developments in one convenient email newsletter. If you’d like to receive the newsletter, just leave your email below and I’ll do the rest. There’s also a new page in the Resources section and a panel on the right of this page if you decide to sign up at a later date.

Sign up to receive FOIMan News

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Mr Gove’s Internal Review

FOIMan explains why he is worried for the future of FOI as a result of the Justice Secretary’s comments yesterday.

Ministry of JusticeNews reports over the weekend suggested that the new Justice Secretary, Michael Gove, was planning a renewed attack on FOI. Well now we know for certain.

Speaking in the Commons yesterday, Mr Gove responded to questions from MPs about the media story that he thinks “we do need to revisit the Freedom of Information Act.” I’ve indicated before that I thought FOI would receive more attention this Parliament, but Mr Gove’s comments are particularly concerning as they seem to indicate that he is inclined to go further than the news stories suggested.

Anyone familiar with recent FOI history will have expected that this majority Conservative government would attempt to amend the fees regulations to make it easier for requests to be refused on grounds of cost. Indeed such an intention was expressed nearly three years ago when the government responded to the Justice Select Committee’s post-legislative scrutiny of FOI. The fact that the last government failed to follow through on its intentions appears to have been the result of a rearguard action by Liberal Democrat ministers.

Furthermore, David Cameron indicated after the Supreme Court’s ruling over Prince Charles’ letters to ministers that he wanted to change the law to reinforce the ability of the government to veto FOI disclosures. With the inconvenience of a general election out of the way, it would appear that there is little to stop his Justice Secretary from pursuing this desire now.

When the news stories emerged over the weekend, I paid little attention. As I’ve suggested, these moves were always likely now that internal opposition has been removed. I’m not happy about the idea of an enhanced veto or reduced cost limits, but I had already conceded to myself that such changes were probably inevitable in the current political climate.

However, Michael Gove’s comments yesterday appeared to indicate that he wants to go further than the “two-pronged assault” predicted in the media. He said:

“It is vital that we get back to the founding principles of freedom of information. Citizens should have access to data and they should know what is done in their name and about the money that is spent in their name, but it is also vital that the conversations between Ministers and civil servants are protected in the interests of good government.”

Mr Gove appears to be making a distinction between “data” such as how much is spent by a government department, and “information” which might include correspondence between government officials. This suggests a far more draconian restriction on FOI than we had been expecting. It seems likely that the exemption protecting the formulation of government policy may come under scrutiny. At present, the exemption is subject to a public interest test, which means that on occasion – not regularly – government departments are ordered to disclose such information by the Information Commissioner or the courts. The most likely change therefore is that the exemption may be made absolute – more difficult to overturn. As the Campaign for FOI has commented, this would be bad enough and would chip away at the fundamental principles of our current FOI law. But it is hard to discount anything from Mr Gove’s comments, which appear to suggest that this “review” of FOI may be more comprehensive than many had suspected.

Mr Gove’s comments are particularly ironic bearing in mind that he made them on the same day as a speech in which he argued that:

“The rule of law is the most precious asset of any civilised society. It is the rule of law which protects the weak from the assault of the strong; which safeguards the private property on which all prosperity depends; which makes sure that when those who hold power abuse it, they can be checked; which protects family life and personal relations from coercion and aggression; which underpins the free speech on which all progress – scientific and cultural – depends; and which guarantees the essential liberty that allows us all as individuals to flourish.”

It appears now that we breathed a premature sigh of relief in 2012 when the Justice Select Committee’s report turned out to be more supportive of FOI than we had expected. The biggest threat to the UK FOI Act is here and now.

Whatever your interest in FOI, if you believe that it ought to be stronger, not weaker, consider supporting the Campaign for Freedom of Information. Over the coming months there will be other ways to express our views, but ensuring that the Campaign can bring its expert knowledge and determination to bear is a good way to start.

 

FOI-avoidance or good records management? Cabinet Office Email Policy

FOIMan wonders if 90 day retention of email by the Cabinet Office is a conspiracy, or if it could be a (clumsy) attempt at governance.

The Cabinet Office

The Cabinet Office

The FT has a piece this morning stating that the Cabinet Office routinely deletes email after 90 days. It argues that this is evidence of the Cabinet Office deliberately avoiding FOI. Cue outraged voices from all quarters.

However, this may not be the dark conspiracy that everyone supposes. Email causes significant problems for those responsible for managing information in all organisations. Despite the fact that it has been around for years, there is no generally accepted approach to managing it. Records management consultant James Lappin wrote a really good piece a couple of years ago outlining the options and their shortcomings. Amongst them is the option of automatically deleting email after a short period.

The argument in favour of this policy is that most email is ephemeral. Keeping it all forever isn’t an option for various reasons (including data protection requirements). But some emails are important records. What you need is to identify a way to encourage staff to file the important emails. But staff tend to put off filing. So the aim of the 90 day retention policy is to force staff to file key email because if they don’t it will be gone forever.

There are of course weaknesses with this policy. Staff may still fail to file things and then they are lost. It is usually easy for staff to find ways to get round the policy by creating folders and moving all their email into them in bulk before the 90 days is up. Their intention is to get round to weeding and filing them at some point but it never happens. As the FT article demonstrates, the policy can be readily misinterpreted. But it is a policy widely adopted because at least it is an attempt to manage the chaos of the email server.

My understanding is that this policy was adopted by many government departments in 2004. It was a policy that we adopted at the Greater London Authority possibly at my suggestion (it’s a long time ago). The intention – at least on my part – was to manage email, not to bypass FOI. As I’ve previously argued, retaining everything would be impractical – it might even reduce the likelihood of information being disclosed, as the section 12 limit would more often be an issue. And I should be clear – the intention was never that all emails would be deleted; it was to encourage staff to take action by identifying and keeping the emails that were formal records. My strong suspicion is that staff in the Cabinet Office are encouraged to do the same. This is not about deleting ALL emails; staff should be saving emails which document key decisions within whatever records management system is in place within the Cabinet Office.

One of the reasons I advocated it was that it was a policy which had been adopted by a previous employer. That employer wasn’t in the public sector, and didn’t face the prospect of receiving FOI requests. I saw it as a legitimate and established way to address the management of email.

None of this is to say that the policy hasn’t become a convenient way for the Cabinet Office to avoid having to answer certain questions. As a policy it has significant weaknesses and it is not necessarily one which I would advocate now. Given the complaints made by the officials quoted by the FT, the approach doesn’t seem to be working well for the Cabinet Office’s staff (although it’s also possible that those quoted ignored the instructions they were given on email filing). If I was advising the Cabinet Office (not very likely, I grant you), I would be advocating a different approach, not least because of the obvious reputational harm that it is causing.

As I’ve written before, records managers do need to consider the political ramifications of their advice and policies. But my strong suspicion is that the 3 month email policy was not – at least initially – proposed as a way to avoid FOI. It was just one of many options for managing email – and every single approach that I’ve ever used or read about has its shortcomings.

Whitehall Ornithology

FOIMan considers whether Government departments discussing “round robin” requests is surprising…or wrong.

Whitehall Street SignAn interesting post from Matt Burgess on his FOI Directory site this morning highlights the fact that government departments compare notes on so-called “round robin” requests. Round robin requests are questions that are sent to several public bodies, often so that their performance or policies in a particular area can be compared.

This question (and variations on it) comes up every now and then, and it always sparks responses varying from “this is more shocking evidence of a Big Brother state” to “so what?”. As a former FOI practitioner, I’ve got a particular perspective on this, and it’s somewhere between the two.

On the one hand, I can see why people might be concerned. If you make a request under FOI – a right that you have under UK law – should that necessarily lead to your details being shared between departments of Whitehall? It feels uncomfortable. If you’re pursuing something sensitive, it might even have a chilling effect on you – prevent you asking the question for fear of someone you’d rather not knowing about it. Some sense conspiracy – are these public bodies collaborating to find ways to block requests?

There is the Data Protection angle. Your contact details and the facts you are interested in are undeniably personal data. Even if the government departments disclosing the details of the enquiry only share the questions, by the nature of round robin requests, the other public bodies will be able to identify the requester – so it remains personal data. This being the case, the sharing of this information must comply with the data protection principles – notably that it should be fair and lawful. Is it fair for public bodies to share this data about requesters? Many would argue that it is not.

On the other hand… I can understand why public bodies might want to compare notes on requests, and indeed I did it myself on occasion as a FOI Officer. Even where this was a less formal process than the one described by Matt, it still happened. There are whole mailing lists where practitioners discuss how to handle requests. It is a lonely business answering requests in most public bodies. For many inexperienced FOI Officers such mailing lists are a lifeline – they can ask questions of the old hands at other authorities. Where a round robin has been widely circulated, members of that list will recognise the issues being described and be able to identify the requester. FOI Officers (or their colleagues, come to that) are not hermits – they will attend events and difficult requests will be discussed over coffee or wine (depending on the time of day and how bad it has been). And rarely is this done with anything other than the best of intentions – often it helps the person dealing with the request to do a better job.

Sometimes it might be necessary for a sector-wide approach to be taken to a request. On the few occasions I refused to neither confirm nor deny whether information was held it was because guidance was issued to all the institutions in my sector advising that approach. If it wasn’t handled in that way, the requester would have been able to piece together responses to establish facts that were potentially harmful in the wrong hands. Acting individually the risk would not have been clear; it was only through discussion that it emerged and the appropriate advice was sought and given.

Whatever the rights and wrongs of it, public bodies are going to share details of requests they receive with other authorities or individual colleagues – formally, informally, in writing or in conversation. Practitioner to practitioner, civil servant to civil servant. Human nature as much as the challenges of the work involved will ensure this happens. The question is how to make it fair and ensure that rights aren’t eroded.

How could public bodies make sure of that in future? Firstly by being as open as possible with those who make requests. Authorities could publish statements setting out what and who details of requests will be discussed with (internally and externally). They should only normally exchange details of what has been asked for, not the identity of the requester (even if colleagues in other authorities may be able to guess). They should limit the circumstances in which this will happen, and who will be party to the details. Senior officials, press officers and ministers must accept that they have no need to know who has made requests in the vast majority of situations, and should not pressurise FOI Officers to share these details.

But like it or loathe it as a practice, it will go on regardless. If you’re making a round robin request (or indeed asking about something controversial), expect the recipients to compare notes at some level.

Matt and I will no doubt be debating this amongst other issues in our new Media Masterclass, so join us if you want to understand how this issue affects journalists.

New FOI Media Masterclass Launches

FOIMan announces the launch of an exciting new Masterclass in FOI for journalists and the media.

Flyer for Media MasterclassI’m very excited to announce a new collaboration between FOIMan and the creator of FOI Directory, journalist Matt Burgess.

Matt’s new book Freedom of Information: a practical guide for UK journalists will be published later this month (and is available for pre-order). As well as being a thoroughly nice chap, he is extremely knowledgeable about how the media and others can get the most out of FOI. With this in mind, I’ve asked Matt to collaborate with me in developing a new Masterclass for the media.

Matt and I will share the delivery of the Masterclass. We hope that bringing together the experience and knowledge of a former practitioner with that of an active journalist will result in a unique learning experience for journalists and other writers who want to use FOI to great effect.

If you’re interested in attending the first Masterclass, we’re holding it in London on 30 October – full details and a booking form can be found on the FOI Media Masterclass page. A flyer is also available for download.