FOI Man at Large: the DPO Conference

Earlier this week I was lucky enough to attend the Information Commissioner’s Data Protection Officers Conference in Manchester. Don’t be misled by the name though – there was plenty to entertain us FOI obsessives.

From the keynote speech from Lord McNally, the Lib Dem Minister of State in the Ministry of Justice, through to the Commissioner’s closing remarks, this was a conference that aimed to fully integrate the Commissioner’s Data Protection and FOI duties. So what was there that caught the eye on FOI?

It was clear from Lord McNally that support – and opposition – for FOI and openness issues is cross-party within the Coalition. He spoke of his surprise at finding himself on the same side as Francis Maude and Eric Pickles in meetings.

In questions, it became clear however that there was some dispute within Government over whether FOI should be extended to the private sector when it provides public services. Some in Government are sceptical as they argue that this would deter companies from bidding for Government contracts. From the tone of the Minister’s response it appeared that there is some fierce debate going on in Government on this very issue. Interestingly, Graham Smith of the ICO later argued that the private sector was effectively covered under the existing Act, as FOI continues to cover services provided on behalf of public bodies.

Lord McNally stated that the changes to the Information Commissioner’s role proposed in the Protection of Freedoms Bill were designed to strengthen the independence of the Commissioner. The Commissioner himself welcomed them later in the day, though he did suggest that if the Commissioner is only to serve one term, that term ought to be longer.

The Orders bringing ACPO and UCAS under FOI will be laid at some point from October this year. My guess, based on nothing in particular (other than neatness), would be that the aim would be for the order to come into force on 1 January 2012, but perhaps it will take effect instantly. I know that ACPO have some excellent people helping them prepare for this, and I’m sure it’s the same picture at UCAS.

Lord McNally also spoke about the changes to the 30 year rule for Public Records. He explained that the long lead in time is because the move to a 20 year rule is an expensive exercise.

Post-legislative scrutiny of FOI is seen by the Minister as an important step after 6 years of the Act. The fact that issues will be aired in a public forum will help in developing proposals to amend the Act further.

We also heard from Katie Davis of the Cabinet Office. It was clear from Katie’s presentation, as from the Minister’s speech, that the Government really does attach great importance to opening up public data. The Government’s aim is to be the most open and accountable government in the world. She explained that the Government’s Transparency Board, chaired by Francis Maude, was challenging assumptions across Whitehall. Its membership is certainly impressive – as well as ministers, it includes luminaries such as Professor Nigel Shadbolt (whose Southampton University home launched their open data repository this week) and Sir Tim Berners-Lee (inventor of a little thing called the world wide web). It was good in questions to hear her comment that Local Government is leading the way on transparency.

A question mark still remains over the impact of open data initiatives on the general right of access under FOI. Senior figures within the Information Commissioner’s Office remain as sceptical as many of us FOI Officers as to whether bulk disclosures will lead to reduced numbers of FOI requests.

Graham Smith, Director of FOI at the ICO, struck a cautious note. He commented that FOI was certainly embedded in the public sector; everyone knows they have to comply, but whether they want to is very much another matter. There is a culture of compliance rather than openness at present, in his view. The Government’s transparency agenda is very much welcomed by the ICO. Graham spoke of a lack of political direction on openness in the past which has contributed to lack of progress in changing the culture.

An interesting point raised by Graham was the fact that our FOI legislation was very much designed with paper record-keeping systems in mind. Now that much of the work of Government is carried out electronically, does that affect the effectiveness of the Act? Finally, he observed that the private sector appeared to be ‘waking up’ to FOI. Not just in terms of using it, but in realising the implications of FOI for their dealings with the public sector.

Later in the day, there was the message that public sector bodies shouldn’t be afraid to apply the provisions for vexatious and repetitious requests where necessary. Similarly aggregation of requests when estimating costs. The ICO will be supportive when looking at these cases where it is clear that requesters are making significant numbers of requests or are harassing authorities. It was clear that this attitude was coloured in part by the ICO’s own experience with some requesters! Public bodies should also be careful to protect personal details of their employees – in many cases, these details will still be protected by the Data Protection Act and section 40 ought to be utilised.

The Commissioner raised a laugh at the end of the day when, following his best impression of the former Prime Minister expressing his regret over FOI, he exclaimed, “Tony, it wasn’t about you!”. He reminded FOI Officers that we should be on the side of Dr Samuel Johnson – a famous exponent of openness – and not that of Cardinal Richelieu, who believed that secrecy was the first requirement of Government.

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