Tag Archive for Ministry of Justice

Justice for FOI

FOI Man greets the Justice Select Committee’s Post-Legislative Scrutiny report with some relief.

This week is a very exciting time for everyone in the UK. It’s finally here, after 7 years, and months of wrangling and concerns over cost. Yes, today the Justice Select Committee has published its report on its post-legislative scrutiny of the FOI Act.

And my first reaction is that I’m relieved. The Committee has rejected the most damaging proposals, and reaffirmed the importance of FOI in enhancing our democracy. They reject charging for FOI requests. They say no to the Lord GO’D’s proposal to give absolute protection to Cabinet papers. They say there is no need for the 20 working day time limit to be extended as ACPO had requested.

House of Commons

House of Commons, home of the Justice Select Committee

What’s more, they’ve recommended some significant tightening up of the Act. Statutory limits of 20 working days for handling internal reviews should be introduced. Extensions to consider the public interest should be similarly restricted (with longer allowed for consultation with third parties). To improve compliance with existing deadlines, the Committee lifts one of my own recommendations – that public bodies should be required to publish data on their compliance with deadlines. They agree with my argument that such publication would allow the public – and the Commissioner – to better scrutinise and compare the performance of public bodies.

One aspect of the Act that has been widely criticised is the treatment of the offence set out at section 77 of the Act of destroying or unlawfully withholding information that has been requested. The MPs agree with the Information Commissioner that this should be made an “either way offence” so that the currently risible time limit for investigation of 6 months would be scrapped. They go further in recommending that the maximum fine for this offence should be increased beyond the existing £5,000 to “send a clear message to public bodies and individuals contemplating criminal action”.

In evidence, I made the point that FOI can only really be effective with senior leadership. I criticised high profile figures who have publicly attacked the Act. The Committee responded to this, and calls for “leadership and focus” by senior officials. It is also, it should be noted, very critical of former Prime Minister Tony Blair and his attitude to their inquiry. He, of course, is the most high profile critic of this legislation – which his own government introduced.

The Committee has largely taken the approach that I have promoted here of “education not legislation” to improve FOI. Controversially perhaps, they have recommended that the cost of handling individual requests should be included in responses, and – rather oddly, I think – that the names of requesters should be included in disclosure logs. The Committee are also supportive of my proposal to introduce a Code of Practice for requesters.

Universities were represented disproportionately in the evidence given by public bodies, and they were handed a dedicated oral hearing. As an FOI Officer in higher education myself, it is with some relief that I greet the Committee’s statement that:

“…universities are an important part of the public realm and we believe that they are generally regarded by the public and by those working in universities as important public institutions. We do not therefore recommend that universities should be removed from the jurisdiction of the Act.”

However, the call of Universities UK and others to amend section 22 of the Act (the exemption for information planned for future publication) to incorporate a Scottish-style research pre-publication exemption did attract the Committee’s sympathies. My views on this have been set out before, but whilst I’m sceptical of the need for such an exemption, I can’t really see much harm resulting from it.

Universities, NHS bodies and others had expressed concern that FOI prevented them from operating on a level playing field with the private sector as the Government increasingly places an emphasis on competition. The Committee hasn’t reached any conclusion on this point, but urges the Government to keep it under review. There is the possibility at some point of an amendment to section 43 of the Act to address this.

The Committee looked at whether private companies should be subject to FOI. They concluded that the use of contractual terms to protect the right of access to information where services had been outsourced seemed to work well, so there is no recommendation to expand FOI in this way.

There is very little in the report that would cause any significant weakening of the Act. We should watch the Government carefully when it responds to the Committee’s suggestion that the “acceptable limit” be reviewed and possibly reduced from the 18 hours of staff time currently allowed to 16 hours. My own feeling is that this would not hugely reduce the number of requests that could be answered, but much depends on the way that the Government chooses to amend the relevant regulations, as the Campaign for FOI has already pointed out.

Many FOI supporters will be a little concerned at the Committee’s comments on the veto. They have chosen to support the veto in principle as a way to counter arguments about “the chilling effect”. Effectively they are saying that civil servants and Ministers need not fear that discussions around policy formulation will be disclosed as they can be protected by the veto if necessary. Some might interpret their conclusions as encouraging a wider use of the veto in future. This, in my view, would be unwelcome and a step backwards.

Overall, the Justice Committee has found that FOI has achieved its principal objectives, and has recognised that the benefits it brings – whilst often not quantifiable – outweigh its costs. Now we must wait and see how the Government will respond to this report. But fundamentally, what’s important now is that public bodies accept that FOI is here to stay.

The SaveFOI Campaign have also commented on the report.

My FOI Wishlist – Part I

FOI Man considers what he would change about the FOI Act – and struggles.

Recently I was asked what my FOI wishlist was. If I could make any change to FOI what would it be?

And I struggled. Despite ten years (in one way or another) working in this area, and almost a year of blogging about it, I found myself thrashing wildly about and failing to come up with something convincing or worthwhile. I wondered why that was.

After a week or so, I think I know why I found this question so difficult. The truth is that I’m not particularly convinced of the need for massive change to the FOI Act.

When I look back through the last year’s posts, it becomes clear to me what my view on this is. The problems that do exist with FOI are all to do with attitudes to the legislation and the openness agenda. Very few are to do with the legislation itself.

On the inside of the public sector, the problems as I see them are a continued cynicism from some at the highest level, and a failure to understand the benefits that greater openness will bring. On the outside, the issue is irresponsible use of FOI – the vexatious requesters, the people who see FOI as a handy method of beating up public officials that for whatever reason they despise, the ones who fire off huge numbers of requests without any consideration of the public money that will have to be spent. These attitudes are the biggest threat to FOI.

The legislation itself is not perfect – nothing is. But it pretty much does what it says on the tin, to borrow a phrase from commercial marketing. It has freed up public sector information to a massive degree within a very short period. It’s easy to focus on the things that aren’t quite right or could be better, and there’s nothing wrong with that. But we ought to remember that the majority of requests for information are fully met. When complaints are made to the Commissioner or the Tribunal, those bodies take a much more pro-openness approach than anyone dared hope before 2005. They have set a high bar and public bodies are, by and large, learning to reach it and sometimes even exceed it.

It’s worth remembering what an ambitious target the FOI Act set. Not only was it aiming to produce a massive culture change at the heart of Government, it was also asking thousands of other public bodies, right down to your local chemist, GP and school, to embrace that change. Bodies that most people hadn’t even realised WERE public bodies. The fact that most of the time people DO get information when they ask for it means that FOI is working.

The picture in the average public sector office right now is not what it was seven, or even five years, ago. Not only FOI Officers but also other public servants are casually familiar with the requirements of FOI. It is still scary for them, but it is no longer shocking.

The key, in my view, is gradual, but constant change. The current Government has so far made it very clear that it wants more transparency in the public sector. Its recent consultation paper on open government and the FOI provisions in the Protection of Freedoms Bill both make broadly sensible proposals to enhance the FOI Act, especially in relation to publication of datasets (as long as we can get better definition of what a dataset is, of course, but that’s another post). I’d encourage anyone reading this post to make sure that they respond to the consultation.

The priority for me is protecting the rights that we do have (and I say ‘we’ deliberately – many public employees have used FOI outside of work). I have to say that many of the suggestions for reform of FOI that I hear – and even some that I’ve thought about – are, when it comes down to it, about restricting these rights. Whether it’s charging for requests, placing a limit on requests, or whatever it is, they’re all about cutting down on FOI requests. We have to question our motives for wanting to restrict a right this hardly won.

In my view, this Government should focus on making very clear that it supports FOI, and specifically the right to make FOI requests. It should lead from the front and keep publishing more information. It should firmly refuse any suggestions from senior public officials or politicians to water down FOI. In the meantime, the Information Commissioner’s Office and the Ministry of Justice should find better ways to provide support to public bodies in meeting their obligations – the ICO can’t always rise above the fray. And they should do more to encourage responsible use of these rights by those making FOI requests.

We need to keep progress going, but let’s not lose the chance to continue winning over influential critics. Resist more restrictions certainly – backwards is not the right direction. But we need to be careful not to destroy a growing acceptance and even, possibly, nascent enthusiasm to find new more transparent ways of working by only noticing the weaknesses and pushing too hard.

In a forthcoming post, I will talk about the ‘tweaks’ that I think could be made to the FOI Act without damaging the rights we have.

Public Data Vs FOI?

FOI Man welcomes Government moves to improve transparency across the public sector. But a more pro-active approach to publication of data mustn’t be used as justification for (or a smokescreen for) weakening the right to make requests for information through the Freedom of Information Act.

The Government’s Transparency Board is, as they say,  just what it says on the tin. It is a Board that champions transparency across the public sector, chaired by Francis Maude. Its membership is impressive, including in its number Sir Tim Berners-Lee, inventor of the World Wide Web, and Professor Nigel Shadbolt, a champion of open data. And as you’d expect from such an institution, its minutes are published online.

The minutes of the latest meeting of 2 March are already available to anyone who’s interested. They include a discussion of the Freedom of Information Act and its relation to the transparency agenda. The thing that strikes me about the report of this discussion is that a presentation on FOI very quickly gets usurped by the general discussion about open data, despite the fact that the rest of the meeting covers much the same ground. This may be just the way its been recorded, and it may not be anything to worry about, but the sense to me is that FOI isn’t seen as a significant part of this process. There seems to be a belief that wider transparency is almost a ‘cure’ for rising FOI requests (which I’m sceptical of, by the way). To quote the minutes:

“It was noted that a move towards proactive publication, rather than just a response to requests for data, was firmly in line with the aims of the Transparency Board.”

Obviously, the Government is keen to press its own agenda, and doesn’t want to work within the straightjacket of the previous Government’s law. Though in truth, there seems little in their agenda that FOI didn’t already permit – it’s a difference of emphasis rather than real substance. Which isn’t to say that an emphasis on more transparency isn’t welcome.

But I think that those who support FOI as a powerful tool for opening up Government ought to be watching developments carefully. I’m still nervous that the Government at some point is going to suggest that as they’re disclosing all this data, there’s a reduced need for the general right of access (the right to make FOI requests). That they use this agenda to bring in restrictions on that right, such as a prohibitive fees regime. This won’t happen until after the post-legislative scrutiny process has been completed of course, but we need to keep an eye on where that scrutiny is led.

The general right of access is very important. As I’ve said before, it means that you choose what information you want (subject to statutory exemptions approved by Parliament). Increased pro-active disclosure is valuable, of course, but it means that the public body, or Government, chooses what it will allow you to have access to. True transparency requires both to be truly effective, not an either/or.

So it should be Public Data + FOI.

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.

Is FOI reform a two-way street? Public funding and FOI

On Friday, the Deputy Prime Minister, Nick Clegg, gave a speech on civil liberties which included significant proposals on reform of FOI. The Ministry of Justice simultaneously published more details on their website. One of the most widely expected, but still important, announcements concerned adding to the list of bodies currently covered by FOI.

The Association of Chief Police Officers (ACPO), the higher education admissions service (UCAS) and the Financial Ombudsman service had already been consulted on becoming FOIable (to coin a word), and the necessary statutory instrument will be drawn up in short order. A much longer list of public authorities will now be consulted on joining this far from select band. In addition, bodies jointly funded by public authorities will no longer be able to escape the widening bounds of the Act.

So what is the justification for bodies becoming subject to FOI? It is common for people to say that if bodies receive public funding, they should be open to public scrutiny. Many, if not all, of the bodies proposed for inclusion will fall into this category.

So should it be a two-way street? What if bodies lose public funding? Does that mean that they should be removed from FOI?

Higher education is an example. And to some, quite a persuasive one. Even before the recent cuts, some leading figures in universities were pointing out that most of their funding does not come from the Government. The Registrar of the University of Warwick, speaking on Radio 4′s You and Your’s in October 2010, pointed out that only 25% of that university’s funding came from the public purse (and this is not an unusual figure). How much greater the argument for removing universities from FOI when many will soon receive much less, especially those which do not offer science courses.

The Government would probably argue that despite a reduction in public money, higher education institutions will still receive some government funding. And they have been very careful with their language in making these latest announcements. Mr Clegg’s words on the subject were:

“if an organisation’s behaviour and decisions have clear consequences for the public good, people must be able to see right into the heart of them.”

And the MOJ announcement talks about “public bodies which perform functions of a public nature”. Given this, I think it’s highly unlikely that the Government will seriously consider removing universities and other higher education institutions from FOI.

That said, with a Government keen to move many public functions outside of the public purse and into the ‘Big Society’, I wonder if we will hear more calls for FOI reform in the other direction.