FOI Man

February 20, 2012

Why 2012 is the year to Save FOI

Filed under: Amendments,Freedom of Information Act,Save FOI Campaign — FOIMan @ 7:21 am

Today (Monday 20th February), a group of us are formally launching a new campaign. As the title of this post suggests, we are campaigning to #saveFOI.

This week sees the beginning of the long heralded post-legislative scrutiny of FOI promised by the Coalition Government last year. On Tuesday morning, the first witnesses, including the head of the Campaign for Freedom of Information, Maurice Frankel, will be appearing before the Justice Select Committee.

Last week the Committee published the written evidence that it has received. What is striking about this evidence is how many public authorities have called for restrictive amendments to the Freedom of Information Act. Some have called for charging to be introduced. Some have suggested that the cost limit for answering requests should be brought down, so that more demanding requests can be refused. Others have even suggested bringing in whole new exemptions for information that they hold.

This comes hot on the heels of comments from the outgoing Cabinet Secretary Lord Gus O’Donnell who has been openly critical of the Information Commissioner’s decisions in respect of Cabinet minutes. Others will be aware that our former Prime Minister Tony Blair considered himself a “nincompoop” for introducing FOI. There have been plenty of others queuing up in recent months to add their voices of complaint to the chorus of disapproval of this legislation, only 7 years after it came into force.

It is hard to think of another requirement on public bodies that attracts such venom and open hostility. And these views are diametrically opposed to the views of most people outside the public sector who welcome this important tool for holding public authorities to account.

Even some inside Government are suspicious of the motives of the Act’s government critics. The Minister responsible for FOI in the Ministry of Justice, Lord McNally, commented in a recent House of Lords debate that:

“…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

And yesterday, writing in the Observer, the Information Commissioner himself made it quite clear where he stands. He dismissed Lord O’Donnell’s criticisms, and dispensed with suggestions from universities that they need a whole new exemption for research data.

Nevertheless, the mood music suggests that there is a desire to contain this young legislative upstart. Some of us even inside the public sector feel very strongly that to do so would be a backwards step. Yes, some individuals abuse the right to access information. Some requests are expensive to answer. It can feel personal when a request affects your work. But the overall benefits, whilst difficult to quantify in hard numbers, far outweigh the problems. It has forced public authorities to open up in a way that would have been unimaginable a decade ago. It has allowed groups from protesters against library closures to disability rights campaigners to make their case to Government on something approaching an equal footing. It has exposed unfairness and inequality in our country. I believe it is starting to make an impact on the effectiveness and efficiency of some public authorities. In short, it makes the UK a fairer country to live in.

And the UK doesn’t exist in isolation. Countries across the globe are adopting FOI legislation. As Nigeria and the Philippines debate the opening up of their governments, is it right that the UK can be considering reducing the rights of its citizens?

So we are standing up to make the case for FOI this year. And we want as many people as possible to join us. So please take a look at our campaign website and consider how you can help us to #saveFOI.

February 13, 2012

Is Michael Gove’s email held by DfE?

Filed under: Definition of held,Freedom of Information Act — FOIMan @ 8:36 pm

FOI Man considers whether an email from the Secretary of State for Education to several colleagues is held by the DfE for the purposes of FOI.

In the Autumn of last year, Chris Cook, the Education correspondent of the Financial Times, broke a story which is of interest to FOI watchers everywhere. He had uncovered evidence suggesting that the Education Secretary, Michael Gove, and special advisers in the department, had been using private email accounts to conduct Government business. The suggestion was that this was being done to avoid the emails coming to light through FOI.

The story has led to an investigation by the Information Commissioner, new guidance from the Commissioner, and questions in Parliament. And Chris himself has proved tenacious in pursuing this story.

For their part, the Department for Education and Mr Gove himself have argued that they had been following Cabinet Office guidance (though Cabinet Office responses to FOI requests have suggested that if such guidance existed, it was not written down), and that the emails themselves related to party political business, and were therefore not held by DfE.

Chris has been at an advantage in this matter. He already had the emails before he made his FOI request, so knew what he thought he should have received. When they weren’t all received, he complained to the Information Commissioner. That investigation is ongoing.

Today, Chris has published one of the emails that DfE insist is “party political” on his FT blog. I’ve studied this email.

There are certainly aspects of the email that are party political. It talks about Labour’s record in negative and explicit terms. You wouldn’t expect a Minister to write to a civil servant in that way.

But here’s the rub. One of the recipients was a civil servant. If civil servants are supposed to be politically neutral, why would you copy one in on a party political email? I’ve never worked in a Ministerial Office or even a government department, so I can’t be sure, but it seems odd.

And there are aspects of the email that sound rather more like departmental business. It discusses communications planning, apparently for the Department rather than the Conservative Party. It asks for information about his Ministerial diary.

It seems to me that parts of the email at least relate to departmental business.

What does the Information Commissioner’s guidance say about this issue? It lists the factors to consider when deciding whether email in a private account relates to Government business:

  • the focus of the request, indicated by the words used by the requester;
  • the subject matter of the information which falls within the scope of the request;
  • how the issues to which the request relates have been handled within the public authority;
  • by whom and to whom was the information sent and in what capacity (e.g. public servant or political party member); and
  • whether a private communication channel was used because no official channel was available at the time.

There doesn’t appear to be any dispute over the focus of the request – if the email is departmental business, it’s covered by the request. We have little knowledge of how such business would normally be carried out, but surely communications planning for DfE is normally a departmental matter. We do know that the information was sent by the Secretary of State for Education, and the recipients were his Special Advisers (who admittedly have an ambiguous role, but are based in the Department), and a civil servant (to their private email address presumably, but nonetheless significant). We can’t know for sure why this channel was used.

A Tribunal decision last year looked in detail at whether information was held by a university, and I think that some of their observations in that case are relevant here:

“The effect of this subsection [s. 3(2) FOIA] is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s.1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.”

The judge who reviewed the case when it was appealed to the Upper Tribunal was very clear that in his view “held” had its normal English meaning. It shouldn’t be over-analysed:

“A key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third parties.  Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test.”

(for a fuller analysis of this case, read what barrister Robin Hopkins of 11KBW had to say about it).

My reading of this is that if in doubt, the information should be considered to be held by the public authority. It might still be withheld using exemptions, but it has to be considered. I believe there is enough doubt in the case of the email the FT has published to suggest that it should have been dealt with as though held by the DfE. And the lawyers that Chris has consulted all agree.

Of course, that doesn’t mean that the Secretary of State was deliberately attempting to avoid FOI. But it does raise more questions about the DfE’s interpretation of the Act.

Why promptly might not be as prompt as all that

Filed under: Environmental Information Regulations,FOI Officer,Freedom of Information Act — FOIMan @ 12:34 pm

FOI Man explains why responses to even the simplest FOI requests may take a little while to reach you

The length of time that it takes public authorities to answer an FOI request is one of the most common complaints about FOI. A quick glance at the decision notices relating to timeliness of responses on the ICO website is enough to confirm this.

And sometimes requesters make a point of stressing in their request that they should receive a response within 20 working days. Sometimes they go even further. They remind us that they should receive a response “promptly”.

In FOI, section 10(1) requires that a response is sent out “promptly, and in any case within 20 working days”. The EIR equivalent at regulation 5(2) calls for a response “as soon as possible and no later than 20 working days” after the request was received.

So what exactly does “promptly” or “as soon as possible” mean? Well, as I explained in a post last year, the Information Commissioner does accept that public authorities have to balance their responsibilities. So it doesn’t mean that everything else will be dropped to answer your request.

Depending on how the authority manages requests, and for instance, how many requests they receive, there could be lots of responsibilities to balance. Even the people directly responsible for answering FOI requests – people like me – can have quite a few things to juggle.

A few months ago I featured a guest post here, where another FOI Officer highlighted the struggle they had to keep on top of FOI requests at a time of diminishing resources. And whilst I can’t claim to be struggling quite as much with my FOI workload (touch wood), I have a range of other responsibilities.

As well as FOI, I am also responsible for, in no particular order – compliance with the Data Protection Act, Privacy and Electronic Communications Regulations and copyright licensing requirements, records management, student complaints and student disciplinaries. Oh, and the official archives.

I’m not complaining – variety is the spice of life, so they say. But perhaps you can see why it might take us longer than you feel it should to answer even the simplest requests. Sometimes they just have to form an orderly queue.

February 6, 2012

FOI requests via Twitter – a Supreme problem

Filed under: Freedom of Information Act,Procedures — FOIMan @ 2:28 pm
Tags:

FOI Man looks at whether FOI requests can be made via Twitter, and concludes that it just isn’t a very good idea.

Earlier today, the UK’s Supreme Court started to use Twitter to much excitement (well, a little, and mostly from lawyers and geeky-types like me). Their first Tweet directed Twitter followers to their Twitter policy, available on the Supreme Court website.

Personally I was impressed that the Supreme Court actually had a Twitter policy. But the stirrings in my Twitter-stream were not about that. No, some of you were concerned about a short statement half way down the page:

“Sending messages to our Twitter feed will not be considered as contacting the Supreme Court for any official purpose (including the administration of cases or Freedom of Information requests).”

Oh dear. The thing is, this goes against advice provided by the Information Commissioner’s Office last year. After some deliberation, they came out with a statement saying that as long as the name of the Twitterer was clear (perhaps in their profile), and the information requested was clear, a Tweet could be a valid FOI request. And I agree with their analysis.

This all comes down to the definition of a request at section 8 of the FOI Act. To be valid, a request has to be in writing; it must provide the name and address of the requester; and it must describe the information that they are looking for. That’s all. It’s long been accepted that you could in principle make a request via text message. It’s not much of a stretch therefore to say that the same applies to Twitter.

In short, if someone does make a valid request to the Supreme Court via their Twitter address, and they ignore it, the requester could complain, and the Information Commissioner could slap them on the wrists for not complying with the Act. So their statement is pretty meaningless. And of course, because they’ve said it, there are now people up and down these isles submitting requests that they wouldn’t have done if the statement wasn’t there, just to prove a point.

My view on this is that using Twitter to make an FOI request is generally a waste of everybody’s time. Of course you can make a request through that route. But why? Firstly, it’s not the easiest thing to fit a request into 140 characters – there are ways round that (eg links), but if you’re going to link to another document why don’t you just use email in the first place? Secondly, if, like the Supreme Court, the authority clearly isn’t geared up to receive requests through that route, the chances are that your request won’t be seen. So then you complain. Well, woopy-doo (I believe I may have invented a new utterance of celebration, but bear with me) – you’ve successfully caught the authority out. But you haven’t got the information you wanted. So who wins here?

Somebody made the excellent point that it’s not a massive job to instruct whoever is maintaining the Twitter feed that they might get FOI requests and to be on the look out for them. That’s absolutely true. But in practice, most authorities probably aren’t aware that requests can come through that route. Jonathan Baines blogged last year about one surprising authority that didn’t seem to be (I promise you, you’ll love this, if you haven’t heard about it before). Also, even those of us who are aware – is this really a priority amongst the many messages that we want to get out to colleagues about FOI (and other things)? I have mentioned it to the people in my authority who maintain official Twitter accounts (and mine isn’t one before you unleash a thousand Tweets in my direction, those of you of a mischievous disposition – @foimanuk is a personal account), but I’m pretty sure that they will still be surprised the first time that it happens (that being the point – it’s still a very unusual thing to do).

And let’s be clear. There are lots of ways to make a valid FOI request that would most likely get you nowhere. In theory, next time your bins are being emptied, you could hand a written note to your waste collection operative, and as they’re providing a service for the council, that would arguably count as an FOI request. Good luck with that.

I’ve got no problem with FOI requests being made in any format or via any media in principle. Some authorities are very good at adjusting to new technologies and providing new ways for the public to interact with them. But many aren’t so good, or have limited resources to support additional communication portals. Is there really any point in sending a request through unusual media if the likelihood is that the authority won’t see your request?

Postscript, Tuesday 7 February

Shortly after I published this post on Monday, the Supreme Court Communications team tweeted the following, addressed to myself and Andy Mabbett, who Tweets as @pigsonthewing, (and who had first alerted me to the Twitter Policy):

“@pigsonawing [sic] @foimanuk Fair point! We’ll accept FOIs via Twitter and will amend our policy accordingly.”

And true to their word, the statement in their policy now reads:

“We would prefer to receive Freedom of Information requests via email or letter, in order to assist us in giving them a full response, but we note the Information Commissioner’s Office guidance on the validity of Twitter as a channel for receiving such requests and will handle them in accordance with that guidance.”

A swift and sensible response to the points raised, and it reflects well on the Communications team at the Supreme Court. Let’s hope there will be more moves towards openness in our court system. For more on that, I do recommend Adam Wagner’s post from earlier today.

February 2, 2012

Post-Legislative Scrutiny – My submission

Filed under: Amendments,Freedom of Information Act — FOIMan @ 10:30 pm

FOI Man sums up what he told the Justice Select Committee as they prepare to carry out their post-legislative scrutiny.

Tomorrow, Friday 3 February, is the deadline for submissions of evidence to the Justice Select Committee for their post-legislative scrutiny. After days of writing – and rewriting – my despatch, I finally sent it off on Tuesday. Hopefully many of you have written to say how important you think FOI is, and why.

The rules of the Committee mean that I’m not allowed to publish my full statement here without permission – I’ve asked the Clerk of the Committee to allow that. However, in the meantime I can summarise the key points I made. Most of this won’t be a surprise to regular readers.

Fundamentally, I think the FOI Act is a brilliant piece of legislation. It’s introduced a right to know that now seems an important part of our democracy; and by and large I think it balances this right with the need to ensure that public services can be run effectively.

It’s met all of its objectives to some extent or another – the Ministry of Justice had already put forward plenty of evidence of FOI making the public sector more open and transparent; I also pointed out how it was allowing campaign groups to engage better with decision makers. I argued that it was almost certainly improving decision-making; and I put forward a defence against suggestions of a “chilling effect”.

The limits of cultural change within the public sector was one of my key themes. I pointed out that whilst senior figures such as former Prime Ministers and Civil Servants were openly and aggressively attacking the legislation, it was always going to be difficult to win people over. In future these attacks need to be aggressively countered from within Whitehall if FOI is ever going to become embedded in our organisations and its full benefits felt.

And linked to that, we can’t ignore those who make requests irresponsibly. The requesters who submit the same request to hundreds of public bodies; the people using the Act to pursue their personal vendettas; and others who don’t understand that the way they use FOI will affect whether it survives. I’ve proposed a Code of Practice for requesters – an FOI “highway code” to promote good practice amongst those using the Act – rather like my Guide to Making FOI Requests. I’d rather see education than litigation used to manage issues with FOI.

I don’t want to see transparency go backwards in the UK. I’ve called for any changes to be subject to a transparency impact assessment, and I’ve also asked the Committee to bear in mind the commitment the current Government has made to transparent and open public services.

I want to see more proactive disclosure, and public authorities encouraged to introduce Disclosure Logs if they don’t already. But I agree with those who think that Publication Schemes are unnecessary to make this happen. I’ve also suggested statutory reporting on compliance and asking requesters to say when they are making a request under FOI. And I’m very keen to see the limitation on prosecution under s.77 of the Act extended beyond the ridiculous 6 months that it stands at now.

Finally, I’ve argued against changes to the fees regulations. I fear that the changes that some have suggested could limit legitimate and reasonable research, so I hope this won’t be a change put forward by the Committee. If there must be changes, let’s focus them on those who use the Act irresponsibly – I think the restrictions on vexatious requesters are probably adequate as they are, but perhaps they could be clarified and maybe linked to the “Code of Practice” I suggested above.

Fundamentally, now is not the time for change. At this time of economic uncertainty, when Government and public services are making difficult and challenging decisions, the scrutiny that FOI offers is needed more than ever. Let’s hope the Committee’s post-legislative assessment reaches the same conclusion.

 

January 28, 2012

Evidence to the Post-Legislative Scrutiny

Filed under: Amendments,Freedom of Information Act — FOIMan @ 12:14 pm

FOI Man reminds readers of recent blog posts that you might find of use if you are submitting evidence to the Justice Select Committee’s Post-Legislative Scrutiny of FOI

The deadline for submitting evidence to the Justice Select Committee’s Post-Legislative Scrutiny of FOI is this coming Friday, 3 February. If like me, you are spending this weekend preparing your submission to the inquiry, here are a few recent posts from this blog that you might find useful if you’re looking for inspiration. If you’re not, you might find them of interest anyway!

My FOI Wishlist – Part I

My FOI Wishlist – Part II

2012 – The Battle for FOI

What do FOI Officers think about FOI?

Remote Ivory Towers or engaged with the modern world? Universities must decide

Should Cabinet papers remain in the closet

To give and not to count the cost

If you are preparing your submission to the Committee, good luck!

To give and not to count the cost

Filed under: Amendments,Charging,Freedom of Information Act — FOIMan @ 12:10 pm

The following is a piece I wrote recently for a print publication but in the event it wasn’t used. I’m publishing it here for your interest, and in case it is of use to you in preparing submissions to the Post-Legislative Scrutiny.

This year FOI is going to be subject to more scrutiny than it has for a long time. Whilst the Coalition Government has pushed for more proactive publication of information, there have been hints that there are some voices at least within the Government that are keen to clip the wings of the general right of access.

In summer last year the Liberal Democrat Minister responsible for FOI in the Ministry of Justice gave an interview in which he highlighted the pro-openness initiatives of the Government. These included the changes in the Protection of Freedoms Bill, the moves made to force local authorities to publish details of expenditure over £500, and the consultations on widening the coverage of FOI to more authorities. He also announced a post-legislative review of the Act. One of the areas that he suggested should be looked at by the review was the cost of compliance with FOI.

Well, here we are 6 months later and the House of Commons Justice Select Committee is calling for evidence for the post-legislative review. The Ministry of Justice has already submitted a memorandum to the Committee setting out its key concerns with the Act, as well as the areas that it is broadly satisfied with. Unsurprisingly, the headline feature of the memorandum is a call for the committee to look at the fees regulations for FOI.

Section 12 of the FOI Act allows a public authority to refuse requests above an “appropriate limit”. The “appropriate limit” is set out in The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (2004 No. 3244). These allow authorities to refuse requests where the cost of carrying out certain activities is estimated to exceed £600 in central government departments or £450 in other public bodies. The activities referred to are:

  • determining whether information is held;
  • locating information;
  • retrieving information; and
  • extracting information from a document containing it.

The Ministry’s memorandum cites the views of a number of FOI practitioners. The view apparently prevailing amongst those surveyed is that the existing fees arrangements are inadequate to control a growing flood of FOI requests to their public bodies. They propose that the limits of £450 and £600 be lowered. Alternatively, or in addition, the suggestion is that reading, redaction and consideration of requests (perhaps including consultation with third parties and deciding whether exemptions should apply) should be included in the cost estimate. Both would mean that public authorities would be expected to spend considerably less time on answering FOI requests, and would be able to refuse many more of the requests that they are currently obliged to answer.

This isn’t the first time that the fees regulations have been looked at with a view to reducing the burden on public authorities. In 2006 – 7, the Labour Government consulted on a very similar proposal. It was eventually dropped (following the parallel furore over MPs attempting to remove themselves from the Act) by the incoming Prime Minister, Gordon Brown.

Many FOI Officers would welcome such a change. Even more of their colleagues would. It has been interesting to see a series of articles appearing in the media over the last month or so listing the “wasteful” and “trivial’ FOI requests which are a “drain on resources”. In the last year, local authorities have called for requests to be charged for, and in some cases, public bodies frustrated with the Act have taken it upon themselves to charge even though they don’t have the power to.

The Ministry has commissioned research to estimate the cost of answering FOI requests. For the previous government, Frontier Economics concluded that the cost to the public sector of answering FOI requests was £35 million in 2005. This time, in addition to the MoJ’s research, individual sectors are consulting on cost. JISC, the higher education central information service, is carrying out a survey of universities’ handling of FOI requests to support the HE sector’s arguments to the committee. There seems to be a determination to demonstrate how costly the general right of access can be.

The concern over cost is understandable in the current economic uncertainty. As one FOI Officer told the MoJ:

“It’s counterintuitive to impose a greater burden on a public body at the same time as you reduce its ability to deal with it”.

But we should be cautious before we rush to join the calls for changes to the fees regulations. Firstly, any change along the lines that have been proposed will substantially reduce the access to information currently available to anyone. If we believe in a right to information, surely we should be nervous of making such a change. Some individuals are disturbingly enthusiastic about curbing people’s rights in this area.

Secondly, there is very little agreement on how reliable figures on the cost of FOI can be arrived at. Last year one council concluded that answering requests had cost it £346,000 in 2009-10. But this was based on all received requests costing the maximum £450. Other estimates, including Frontier Economics’, have been similarly questionable. There are still no reliable or agreed measures for calculating the true cost of FOI.

Thirdly, it is worrying that the focus is purely on how much FOI costs. There has been very little attempt to establish how much FOI saves the public sector each year. Those savings are very hard to quantify. There are the savings that come from public employees and politicians taking more care over spending public money. There are the errors picked up as a result of FOI requests that shine a light on sections of the accounts that might otherwise have slipped by unnoticed. There are the efficiencies suggested by outside observers who might not otherwise be in a position to do so.

But beyond all the focus on cost, perhaps we’re missing the bigger picture. FOI is being used in all sorts of ways, by all sorts of people. It is part of a whole new way of engaging with government. We should consider carefully before encouraging those in power to curtail it, even in seemingly minor ways.

January 21, 2012

Should Cabinet minutes remain in the closet?

Filed under: Amendments,Exemptions,Freedom of Information Act — FOIMan @ 7:04 pm

FOI Man challenges the claims of the Lord G.O.D. and his exalted predecessors that FOI threatens good government.

Just before Christmas, the outgoing Cabinet Secretary, Gus O’Donnell, known affectionately (mostly) in the Civil Service as G.O.D., took the occasion of his retirement to criticise FOI. In particular, he felt that there was not enough protection for Cabinet minutes, inferring that he favoured an amendment to the Act to protect them. He told the Times:

“Freedom of Information that allows the public to ask questions about things is fine, but the bit that I’m really against in freedom of information is that bit where it reduces the quality of our governance…I want Cabinet to have real discussions, for people to be able to say, ‘I disagree with this policy’.”

The now Lord G.O.D. (he now has a seat in the House of Lords), is not alone in raising this concern. This week a short debate in the House of Lords allowed a number of his predecessors as Cabinet Secretary to air similar views. And it’s not just former Civil Servants. Back in 2007, the then Secretary of State for Trade and Industry, Alistair Darling, wrote to the Lord Chancellor, Lord Falconer, to raise his concerns:

“I am concerned that the FOI Act, as it appears, prevents us from protecting robustly and across the board advice from officials to Ministers…we will need to watch Information Tribunal case law carefully and in due course consider whether change to the legislation is needed to redress an apparent imbalance between the “right to know” and the protection of private space where necessary for good governance.”

So what sort of change do FOI’s critics envisage? At the moment Cabinet Minutes (and related discussion) are protected by section 35(1)(b) of the Act. Section 35 is a class-based exemption. This means that there is no prejudice test, as there is for, say, section 36 (prejudice to effective conduct of public affairs). Cabinet Minutes and other ‘Ministerial Communications’ are exempt from disclosure because they fall within that category. Whenever an appeal relating to this exemption ends up with the Commissioner or Tribunal, they usually uphold the application of the exemption to Cabinet Minutes and their like – they either are, or aren’t, Ministerial Communications.

However, the exemption, like many others, is subject to a public interest test. On the rare occasions where the Commissioner or Tribunal have ruled in favour of disclosing Cabinet Minutes, they have argued that the Cabinet Office have judged the public interest incorrectly. So in effect, it’s this aspect of the Act that critics want to change. They want the exemption for Ministerial Communications to be made absolute (or perhaps for a new narrower absolute exemption for Cabinet papers to be introduced), so that a public interest test won’t apply. This is the same change that was made to the exemption covering correspondence from the monarch and her heirs in 2010. (It’s worth pointing out that whilst it might be possible for the UK Government to introduce an absolute exemption for Cabinet minutes under FOI, discussions at Cabinet relating to environmental matters would be subject to the Environmental Information Regulations (EIR). Exceptions in the EIR are all subject to a public interest test, and since the regulations are based on a European Directive, there is little likelihood of changing them in this way).

To be fair to those who want this change, it would not be an entirely unusual approach to Cabinet Minutes. Most countries have some level of protection for Cabinet minutes or their equivalents. In Ireland, Cabinet Minutes are protected by an absolute exemption, though this is tempered by the fact that this protection is only available for ten years (in the original Irish Act it was 5 years, but this was later amended). But in New Zealand, for example, the Government has to demonstrate that the convention of collective responsibility would be prejudiced by disclosure, before also carrying out a public interest test.

So let’s look at the key arguments against disclosure of Cabinet minutes.

The convention of collective responsibility is the convention that Ministers speak with one voice on Government policy. It is why Ministers who don’t agree with Government policy and wish to speak out against it have to resign. It is one of the most common arguments against disclosure of Cabinet minutes in this country. However, as is often pointed out, the convention is regularly undermined by former Ministers and civil servants publishing memoirs, making ‘off the record’ briefings, and leaks. It is rare, some would say, that the views of individual Ministers are not public knowledge when it comes to the most controversial areas of Government policy. The Information Commissioner’s view is that FOI is a method through which conventions may be legitimately challenged. Conventions have never been set in stone – they evolve over time to reflect political realities.

The other argument made by critics of FOI is that Ministers (or officials) can’t speak candidly because they are aware that their views might be made public. The Tribunal’s answer to this in a number of cases has been to point out that Ministers and their most senior officials are not exactly “shrinking violets” (to quote a phrase used in a comparable Tribunal decision looking at the BBC’s Board of Governors). Similarly, G.O.D.’s argument that the risk of disclosure undermines governance – because minutes have to be written in an anodyne way in case of disclosure – has also been countered by the Tribunal in the past, who argue that good practice should prevail over sensitivity. (The Tribunal dismantled a number of these arguments quite effectively in a case involving the then Department for Education and Skills in 2007; the arguments have been rehearsed many times since).

The Ministry of Justice found it difficult to reach any conclusion on the matter in its recent Memorandum, so the evidence in support of G.O.D.’s arguments is clearly rather equivocal. According to Eagles, Taggart and Liddell (Freedom of Information in New Zealand, OUP, 1992), who studied the New Zealand Official Information Act, the fear of disclosure has had little impact on the way that public employees and ministers express themselves in that jurisdiction. It is argued that this is because firstly, accurate records are necessary for these people to defend themselves in the future; and secondly, the risk of disclosure of any one document is actually very slight. This last argument reflects my own experience, and that of other FOI Officers I’ve spoken to. The biggest problem we have had is with officials who have been somewhat flippant in correspondence or notes and only realise the error of their ways when a relevant request is received. There is little sign that fear of FOI has inhibited their record-keeping.

It seems to me that fears over Cabinet minutes are misplaced. I’ve looked at the Commissioner’s decisions in relation to Cabinet Minutes. The Commissioner has looked at 14 cases where s.35(1)(b) was applied in relation to Cabinet or Cabinet Committee minutes. Of these, half upheld the Cabinet Office’s view that the minutes should be withheld. The remaining 7 cases related to the Falklands War (which happened 30 years ago, let’s not forget), the Westlands affair (almost 30 years ago), Devolution discussions in 1997/8, and the takeover of Rowntrees by Nestle in 1988. The only decision that related to recent history was that ordering disclosure of some of the minutes recording discussion of the Attorney General’s advice in relation to the war in Iraq. And both the Commissioner and Tribunal made some convincing (to me at any rate) arguments in this case as to why the disclosure was in the public interest. They also made it clear that they viewed the circumstances as unusual.

The Commissioner and the Tribunal have repeatedly, and reasonably, made clear that the public interest in withholding information will diminish over time. Is it really that odd that they would consider that it is reasonable to disclose Cabinet minutes nearly 30 years after they were written when the Government itself is committed to opening up Cabinet minutes after 20 years at some unspecified point in the (hopefully) near future? What always strikes me whenever I look at such decisions is that the Cabinet Office, to borrow the famous criticism of first world war Generals, are always fighting the last war. They keep spouting the same arguments against disclosure, even though the Commissioner and the Tribunal have repeatedly dismissed those arguments. And G.O.D. and his predecessors are repeating them again.

Instead of parroting the same old arguments, or calling for FOI to be reined in, wouldn’t it be more productive for the Cabinet Office to examine previous decisions and work out a better strategy for protecting information where it really is necessary? It seems to me that in most cases, where they are able to demonstrate that there is a public interest in withholding information, the Commissioner is willing to listen. But what he can’t do is act as though FOI doesn’t exist in relation to Cabinet minutes. However much some would like that to be the case.

The best, and most succinct, argument against amending the Act’s provisions for Cabinet minutes came, encouragingly, from the current Government’s Minister responsible for FOI, Lord McNally, as he closed this week’s debate in the House of Lords. I will leave the last word on this to him:

“…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

 

January 12, 2012

Remote ivory towers or engaged with the modern world? Universities must decide

Filed under: Amendments,Freedom of Information Act — FOIMan @ 2:09 pm

FOI Man responds to a blog post by Universities UK, the representative body for Universities and Higher Education in the UK.

It’s fair to say that when I made the decision a few weeks ago to remove my mask and reveal my identity to anyone who was interested, I didn’t expect that one of my first posts would be to take task with the representative body of the sector that I work in. It’s probably a good idea if I first of all remind you all that my utterances here reflect my own personal opinions and should not be ascribed to my own employer.

So having got that disclaimer out of the way, what is it that’s got me so hot under the cape (as it were)? It’s a blog post from Universities UK, the self-styled representatives of universities and higher education in the UK. In this post, UUK announce that they are lobbying peers to add amendments to the Protection of Freedoms Bill being debated in the House of Lords today. The most significant of these amendments would create a new exemption.

The exemption that they propose is based on section 27(2) of the Scottish Freedom of Information Act, and is designed to protect pre-publication research data. UUK believe that the current Act doesn’t provide adequate protection for such information. So let’s take a look at that claim.

The new exemption would in practice be an amendment of section 22 of the FOI Act, which gives a qualified exemption protecting information that is intended for future publication. Let’s back up there. Section 22 already protects information that an organisation intends to publish in the future. That’s one exemption that universities could use to protect research in advance of publication.

Are there any other exemptions that might apply? Well, if the research contains commercially sensitive information or trade secrets, there’s an exemption at section 43 that you might have heard of. If it contains sensitive personal information, section 40(2) will almost certainly apply, and if its been provided by a third party during the course of research, then section 41 might also be useful. How many exemptions do UUK think we need to provide comprehensive protection of pre-publication data?

Well, of course, we might well think that UUK has formed this opinion because in its experience, this issue is coming up all the time. Perhaps there are several ICO decisions which make clear that the existing exemptions aren’t sufficient. So I did a little exercise this morning on the way to work checking the ICO’s decision notice database to see how many cases involved higher education institutions using the existing exemptions to try to protect research information. And do you know what I found? There were three. One was a PhD thesis successfully protected using sections 22 and 43. Another was about animal research. And the final one involved research data and other information relating to the MMR jab furore a few years ago (and as we all know, the research had been widely publicised by the doctor in question). Firstly, do UUK really want to protect such research from disclosure (that’s a bit of a PR own-goal if they do, surely)? Secondly, even if they do, the amendment they propose won’t achieve this.

So I thought, I wonder how many decisions of the Scottish Information Commissioner relate to the equivalent Scottish exemption. I checked his decisions database. There were NO DECISIONS.

(Incidentally, some of you will remember the Philip Morris International request to Stirling University a little while ago.  I don’t know the latest on this, but at the time when this was all in the Press in September, the only thing that the Scottish Commissioner had done was to say that the University couldn’t refuse the request as being vexatious. The University was at the stage of providing a revised response, so despite all the noise, there was still a way to go before anyone came anywhere near forcing the University to disclose the data to Philip Morris.)

So UUK are campaigning for an exemption that nobody needs and that even when it does exist isn’t used. Odd.

So why does it bother me? Well, first of all, there are plenty of exemptions in the existing FOI Act, and if anything they could do with being simplified and reduced in number. Adding another one – even a completely useless one – just sends out the wrong signal. Secondly, the fact that so many universities think that it’s needed (and I’m assuming that several must feel the same way for UUK to want to give an opinion) suggests to me that there is a lack of understanding in higher education as to how the Act works.

But there’s something else. It’s not just this amendment that bothers me. It’s the attitude of UUK to FOI (if that’s not too many TLAs in one sentence). The UUK blog, which I’m presuming is intended to give the official view of the organisation and its members, says that it thinks FOI is the wrong tool to provide transparency in higher education. It adds:

“We don’t think Parliament envisaged how it would apply within universities, and especially to university research, when the Act was passed in 2000. In any case, since that time, the proportion of funding universities get from public sources has fallen considerably, and will continue to fall, making their inclusion within the definition of ‘public authorities’ all the more strange.”

I’ve heard that funding argument a number of times, but let’s leave aside the fact that the Government is considering bringing McDonalds’ vocational qualification within the bounds of the FOI Act, let alone degree-awarding bodies. I’m not an expert by any means on the funding of universities, but it does seem to me that even with the current reforms to higher education, they will still be receiving a large proportion of funding, one way or another, from the public sector. The mechanisms may be changing, but ultimately they’re still, and will continue to be, public bodies.

Tim Turner wrote recently that he would have a perverse admiration for anyone who had “the courage to oppose FOI actively”. Sadly, UUK are the ones with that courage. And unfortunately that attitude appears to pervade the higher education sector generally. Only last week, Times Higher Education included an article about “bizarre FOI requests” that “waste university resources”. The timing is crucial – just before the Lords debates the Protection of Freedoms Bill, and as the UUK blog points out, in advance of the crucial post-legislative scrutiny being carried out by the House of Commons Justice Select Committee.

The question is: do universities want to be seen as modern, progressive organisations, engaged with the world at large? Or do they want to be seen as elitist institutions, locking up their knowledge in ivory towers? It is a fabulous privilege to be funded to increase society’s knowledge. Stubbornly refusing to accept and embrace FOI as a method of engaging with the world is going to leave people with a very old-fashioned image of universities, that in my experience is not reflective of their true ambitions.

January 10, 2012

What do FOI Officers think about FOI?

Filed under: Amendments,FOI Officer,Freedom of Information Act — FOIMan @ 1:27 pm

FOI Man looks at what a recent survey of FOI Officers for the Ministry of Justice says about practitioners’ views of FOI.

This blog is all about FOI from the perspective of an FOI Officer, so an appendix to the Ministry of Justice’s recent memorandum to the Justice Select Committee caught my eye. Not least because MoJ’s conclusions in the memorandum appear to be so greatly influenced by the views of the practitioners quoted in it.

A survey was carried out by Ipsos Mori for MoJ by telephone between October and November last year. 22 FOI Officers (or similar) in 16 organisations were interviewed and asked their views about FOI. We are not told which organisations were involved, but a table in the report indicates that 4 respondents were in Central Government, 5 in local authorities, 6 in health organisations, 3 in the Police, 2 in “commercial organisations”, and 2 in “other public authorities”. Given the breadth of the public sector covered by FOI, some might question how representative this sample can be (especially given that some of these respondents worked for the same organisation).

The report is broken into 7 broad sections:

  • FOI requests: volumes, requesters and processes
  • Information management and publication schemes
  • FOI response times and resourcing
  • Exemptions and guidance
  • Benefits of FOI
  • Complaints and appeals
  • Suggested amendments.

There is nothing particularly surprising in the report, though if I’m honest, I’m disappointed at the negativity that leaps from the pages. The report quotes some of the respondents to illustrate its findings, so here for example, is a quote about why a particular respondent felt that request volumes were rising:

“It’s very easy for people to make requests to us, because all you have to do now is use WhatDoTheyKnow.com. At least [before] they’d have to type an email or write a letter to us. Now all they do is put their information in and it sends it directly to us. I don’t think that’s a bad thing, I just think that it’s made it easier and made people lazier. For example, as soon as we refuse a request from WhatDoTheyKnow.com quite often we’ll receive a request for an internal review very quickly because all they need to do is push a button to say I want this to go to internal review”.

WDTK probably has contributed to rising request volumes – fair enough. It does make making requests easier. But let’s be clear – THAT’S A GOOD THING. And just because something is easier, I don’t quite see how that makes people lazier.

Requests from journalists and commercial companies are perceived to be a “drain on resources”. These kind of statements always frustrate me. It’s not unreasonable to note that volumes of FOI requests are rising. Or that this has had an impact on resources, especially during a time of economic difficulties. And, as unpopular as it may be with journalists, I also have no problem with public authority press officers being given advance warning of disclosures to the media. We have a right to defend ourselves and there is a public interest in public authorities doing so in my view. BUT it is not reasonable, in my opinion, for criticism to be levelled at broad categories of requesters. The whole point of FOI is that anyone can make a request. It doesn’t matter why they want the information, they have that right. If you believe in a democratic society, where everyone has rights, surely that makes sense and is to be welcomed.

Moreover, the specific groups mentioned seem to me the very groups that we should be welcoming requests from. It is an amazing thing – not to be sniffed at – that any individual can ask searching questions of the government or their local authority or police force. But arguably requests from individuals don’t make that much difference – responses satisfy their curiosity but have very little wider impact. Responses to the media, in contrast, regularly get reported – you can hardly pick up a paper these days or read a website without seeing a reference to FOI – reaching a far wider audience, and having a much greater impact. Answering these requests is far more “cost effective” if you want to look at FOI that way (which I personally don’t, but each to their own). Similarly, those commercial organisations that are complained about – the general complaint is that they pick the fruits of publicly-funded work to make money out of it themselves – well, frankly that’s government policy. We’re supposed to be doing all we can to support our economy. And if the disclosure would really affect commercial interests, there is an exemption for that.

There were a number of suggested amendments to the Act, but as previously indicated, the headline suggestion is to amend the cost regulations so that either or both of the following happen. One – that the cost threshold (of £600 for central government and £450 for other public bodies) be lowered. Two – that in estimating this cost, authorities should be able to consider more of the activities involved in answering FOI requests. Not unreasonably, some respondents pointed to cuts to staff and resources, saying that:

“It’s counterintuitive to impose a greater burden on a public body at the same time as you reduce its ability to deal with it”.

A rather confusing paragraph in the report suggests that all respondents disagreed with the idea of the public paying for information, before adding that some felt that a nominal charge should be introduced to deter vexatious requesters. I’ll be coming back to this issue of cost in a later post.

Most respondents were able to see that FOI had benefitted both the public and their own organisation to some extent or another. For the public, this was seen in increased transparency and engagement (though the report authors point to UCL Constitution Unit research questioning this latter). For the organisations, there were seen to be benefits of improved standards and professionalism and raised awareness of responsibilities to the public (which do seem to me to be very valuable benefits, though difficult to quantify). Few respondents were able to point to examples of FOI saving money in their organisations, but how about this one for starters).

It’s no great surprise that many FOI Officers are concerned about falling resources and rising request volumes. A few months ago I hosted a guest post here which vividly illustrated how difficult it can be to manage FOI requests in the current environment. But it really does concern me that so many of my colleagues – if this survey is to be believed – have such negative views of the legislation that they are responsible for implementing. If we’re to be effective in our jobs, surely we have to be able to champion FOI – to believe in its value to our organisations, to the public and to society as a whole. FOI can be hard work – and we all grumble at times (some of us publicly) – but we have to keep in mind the bigger picture.

 

 

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