Tag Archive for Open Government

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.

What’s wrong with FOI?

FOI Man makes the case for and against FOI and more transparency – what do you think?

It’s very easy for an FOI Officer to find fault with FOI. But hopefully regular readers will have picked up by now that I support FOI and moves towards openness in the public sector.

Unlike some, I don’t have any beef with particular groups who use FOI. Let’s look at the usual suspects.

Of course businesses use it to draw up contact lists for marketing, or to build databases which they will then sell at profit. It’s their right, and those who promote FOI in Government think this is a “good thing”. It is a mechanism that allows information collected or created at public expense to stimulate the economy. It is a strong justification of FOI in a largely market-based economy. It is why Conservative, as much as Liberal Democrat and Labour supporters, feel able to support openness initiatives.

Students use it to research their degree projects. So what? It’s good that they have the nous to use a facility such as FOI. We only have to provide what we have and if the cost is excessive we have an answer to that. It’s frankly not true that, as some would have it, we have to do their work for them – if information is publicly available to them, we just have to point them in the right direction and if necessary cite the exemption for information that is otherwise accessible.

It’s a good thing that journalists use FOI. I’d rather see stories based on evidence that I’ve helped provide than see badly researched sensationalism in the papers. Surely I’m not the only FOI Officer that gets a buzz when I see something I’ve provided mentioned in the Press? I sympathise with those who have become jaded because of the attitude of some (not all, or even most) journalists, and the way that some disclosures have been presented, but the answer is to remain positive and open, not to become defensive. Otherwise we just reinforce negative attitudes to the public sector in the media.

Users of WhatDoTheyKnow are using a service to make requests. It’s marginally easier to make a request using it than sending an email. Some will abuse that ease, but that’s going to happen with any route made available. And by engaging with those who work for and with WDTK, we have an opportunity to encourage responsible behaviour amongst requesters.

My point is that we can’t have a right and then quibble about who’s “allowed” to use it. And FOI is an important right. Whether we like it or not, it has become an internationally recognised badge of a free and democratic society. It’s as much about demonstrating our aspirations as a modern and progressive country as it is about accountability and transparency. This is one reason that I was disappointed by Tony Blair’s admittance in his autobiography that he considered FOI a mistake. If that’s true, that’s not only hindsight, but also short sight.

That said, of course, it’s very easy for supporters and users of FOI to become blinkered. One of the vaguely articulated aims of this blog is to demonstrate the impact that the legislation, and people’s use of it, has on public authorities and the services that they provide. It is neither perfect nor pain-free. And maintaining it, somewhere down the line, means choosing between FOI and provision of other services.

I’ve said previously that I am irritated by statements such as “it’s our information”. Aside from the fact that it is legally inaccurate, it is hopelessly impractical. Information is collected by public bodies so that they can provide the services that some or all of us rely on. Often, the provision of those services will be compatible with, and may even be served by, disclosure of the collected information to the public. But on occasion, it just isn’t possible, and it wouldn’t be in our interests (as a society) to do so. It’s not that I view Government as always benevolent and paternal, or take a view that we should accept what we’re given without question. But I do accept that at least some of the time, things work better without me or others knowing every last detail. If only because the physical means of disseminating that level of information will get in the way of the provision of essential services.

If FOI and other transparency initiatives are going to work, they have to be managed as a process. That means, I’m afraid, refusing requests that will cost too much. Recognising that some people do abuse the privilege and turning them away. And using exemptions where we have concerns over the impact of disclosure of certain information. It means thinking carefully about the resource implications (I know, dirty words in the public sector at the moment) of more transparency. I think it also means looking at how transparency and FOI can contribute to the wider aims of the public sector. It has to be more obvious to public servants what the point of openness is, beyond satisfying curiosity. Can it help us make the savings expected of us? Are there ways that it can be built into our processes to make them more (and not less) effective? What are the wider benefits to our society?

So what do you think? Do you have any ideas about the future of FOI and how it can be made to work better? I’m particularly interested in hearing your constructive comments on FOI and transparency (rather than the knee-jerk reactions that we’re all prone to when we feel very strongly about something). Let me know by commenting here, or via Twitter (@foimanuk).

FOI 2.0

FOI Man looks at the Government’s latest proposals for FOI 2.0.

The Government has launched a new consultation looking at Open Data and transparency in public services. I’m all for progress in this field.

I wanted to focus though on what the Government is saying about FOI specifically in this report. It suggests the following:

  • establishing the principle that data/information not subject to exemptions should be published;
  • a new requirement that all public bodies/providers of public services should proactively publish information about the services they provide;
  • an enhanced right of challenge against decisions not to publish data to an independent body (I’m really hoping that they’re thinking about the Information Commissioner, and not another body to confuse matters);
  • reform of the fees regulations – notably raising the ‘acceptable limit’;
  • reviewing the Information Commissioner’s powers;
  • statutory limits for internal reviews;
  • using procurement rules to ensure that new ICT systems are designed to facilitate the publication of data;
  • phased introduction of new generation of ICT systems that facilitate publication of data.

I don’t have a significant problem with individual proposals here. I worry about the practical implications of making it all work, especially at a time when the public sector is cutting staff. But I’m sure that Government, enlightened by the responses to its consultation, will factor all that in and make sure that adequate resources are provided.

My main concern is the general tone of this section of the report. In common with many reports by this Government, the underlying message is that public sector bodies and their employees are the problem. In this case, we’re clearly doing all we can to thwart openness. We’re only refusing requests that exceed the ‘acceptable limit’ because we can. All internal reviews are being delayed as long as possible, just because we can. We’re deliberately procuring ICT systems that make it difficult to publish data just so we can argue that it will cost too much to publish it.

No, no, no. I’m sure that some of you reading this will immediately respond that that reflects your experience of public bodies and FOI. And no doubt you have had bad experiences, or felt that you’d had a bad experience because your request was refused. But just because you didn’t get the outcome you wanted, or you had a bad experience with an authority that got it wrong, doesn’t mean that all public bodies are actively anti-openness.

As I’ve tried to make clear in this blog on a regular basis, the biggest obstacle to openness is the resource implication. Not only does it stop you getting information when your request exceeds the ‘appropriate limit’, but it’s also behind 90% of the disputes that I have with colleagues over disclosure – they’re not secretive, they’re busy; and the experience of having to carry out their main function whilst also digging out information  poisons the minds of some officials to FOI in the long term. It’s a real issue. And you can hit us over the head and tell us how awful we are as much as you like, making FOI and openness work is about winning people round so that they can think about these issues positively rather than under duress.

So here are my proposals for a better, more effective FOI regime:

  • more powers for the Information Commissioner;
  • even more important, more resources for the Information Commissioner;
  • ensuring that FOI requests can be regulated – I don’t mind how, but there does need to be some way to do this; like it or not, we have limited resources and likely to become still more limited. Charging is far too blunt a tool, but I’m not really in favour of raising the ‘acceptable limit’ – 18 hours is still a vast amount of time for an authority to spend on answering one person’s questions;
  • ensuring that public authorities are resourced to facilitate openness;
  • abolishing the ministerial veto;
  • requiring public authorities to publish their statistics for FOI compliance (after all, how can the Commissioner ‘name and shame’ authorities if they’re under no obligation to publish or return such statistics).

This would be all along side more pro-active disclosure. But it all needs to be balanced against the ability to provide a workable service. Change, yes, but let’s make it gradual and realistic.

FOI, Datasets and the Protection of Freedoms Bill

A little while ago, Ibrahim Hasan of Act Now Training kindly asked me to write a piece for their Information Law Newsletter. It appears in the latest issue which has been published today.

In summary, I talk about the proposed amendments to the UK Freedom of Information Act in the Protection of Freedoms Bill. The piece covers what datasets are (also covered in more depth by Ibrahim in another piece elsewhere in the Newsletter), what practical steps we should be taking, and finally calls for FOI Officers to get more involved in open data projects in their organisations.

There are also pieces in the Newsletter from Emily Goodhand, better known as @CopyrightGirl on Twitter, who wrote a couple of great guest posts here and here a few months ago, and Jonathan Baines, an Information Rights Specialist at Buckinghamshire County Council, who writes about the Environmental Information Regulations.

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.

Open Data – Just Do It?

Central Government has established a datastore for Open Data. But if you’re outside of Central Government, how do you react to calls for more online data? And what is the role of FOI Officers in getting them established? Southampton University’s new datastore may give us some clues.

This week Southampton University launched data.southampton.ac.uk, its open data repository. It is perhaps unsurprising that Southampton should take the lead in the Higher Education sector in this way. Two of its academic staff, Professors Nigel Shadbolt and Sir Tim Berners-Lee (yes, that one), sit on the Government’s Transparency Board and are heavily involved in the data.gov.uk site.

However, this is the lowest tier of the public sector at which I’ve seen this done. The Greater London Authority (GLA) in London has a Datastore, but the GLA has always been a strange beast – a weird hybrid between local government and central government with more flexibility than most public sector bodies. There may well be others doing great things, but I’m not aware of them. The fact that a higher education institution could do this set me thinking. Was this something I should be doing?

I’ve been hearing great things about the power of open data, but it all seems rather distant from me. The language used can be off-putting at times. All this XML, ODF, even the term ‘Repository’ suggests to me something difficult, technical and, most of all, expensive.

A journalist asked me last week if FOI Officers were involved in Open Data initiatives in the public sector. Being honest (like Superman, FOI Man never lies), I explained that from what I had gathered, where open data initiatives were in place (basically Government and the GLA) the two things seemed to be dealt with separately. FOI Officers were busy dealing with FOI requests and required specific knowledge of the application of legislation. Open Data projects tend to be run by techie-types, statisticians and economists. And it rankled with me that I was being left out of this important stage of the openness agenda.

Why shouldn’t we be involved in these projects? Through answering FOI requests we’ve built up a vast knowledge of the information held in our organisations and how feasible it is to extract and make public. Those of us who are records managers as well have an even deeper knowledge of our organisations’ information resources. Some of us even maintain Information Asset Registers so have already identified all the key datasets in our organisations. No, scratch that. Not only should we be involved, we should be initiating and leading on these projects.

A ‘repository’ is no more than the place where the files are put; it doesn’t have to be something new – unless and until the volume of material is massive, it can just be saved to our Content Management System (CMS) and published to the website that way. The format we publish in is probably less important than just getting it out there, but I have a hunch that the Excel spreadsheets we often send out when asked for data under FOI would be sufficient for most people who wanted to re-use our data. Once we start publishing this data routinely, we’ll presumably get feedback which will tell us which formats we should make data available in in future.

The biggest obstacle is perhaps the legal side of things. Here too though, things are simpler than they were. The National Archives’ new Open Government Licence provides a straightforward way to licence re-use of our data. Assuming the Protection of Freedoms Bill is passed, it will become mandatory for public bodies to adopt such a licence, so why not get ahead of the game?

But surely FOI Officers are there to deal with the requests that come in under the general right of access? Well, we’re also supposed to be maintaining Publication Schemes, pointing to the information our organisations make available pro-actively. And we’ve come under increasing pressure to create and keep up-to-date disclosure logs of the responses we’ve made to FOI requests. The Publication Scheme and Disclosure Log could well be used to structure our datastores.

I may be being terribly naive here, but it seems to me that establishing institutional online datastores outside central government is simpler than we may think. And that FOI Officers ought to be leading the way on them. We already have the tools and the justification for doing these things. Much of it won’t even need additional approval (which if you read We Love Local Government’s amusing, if depressingly familiar, post on Friday, you may appreciate).

I’d love to hear from anyone who has been involved in establishing an Open Data store for their organisation, or has expertise in this area. Am I over-simplifying this? Or perhaps I’m being slow on the uptake (not the most unlikely thing in the world) and everybody else is already well aware how to go about this? Whichever, do please comment on this post – I’m particularly interested to hear your views on Open Data and what we should be doing to make it a reality.

The Freedom Bill – some initial thoughts

This morning the Protection of Freedoms Bill 2010-11 was published. This is, rather unsurprisingly, not the same as the Bill proposed by the Liberal Democrats in 2009. There’s no end to the Ministerial veto for a start. (Interestingly, the Freedom Bill website has disappeared, so we’re left with this summary from the Campaign for FOI blog.)

Early days, but I’ve already posted some observations on the FOI amendments included in the Bill on Twitter, so for your convenience, here they are in one place:

  • Information Commissioner weakened, in my view, by one term limit
  • ‘Dataset’ provisions seem very wordy way of saying what s.11 said already – this is what Francis Maude promised way back in October. It’s supposed to force authorities to disclose requested ‘datasets’ in the electronic form stipulated by the requester. Whatever your views on this, the Bill seems a bit wishy-washy on this subject, and in fact doesn’t seem to require much more than is already stipulated by s.11 of the FOI Act (ie public authorities have to comply with wishes of requester “so far as reasonably practicable”)
  • copyright changes look interesting, but why just ‘datasets’? – the one aspect of the ‘dataset’ changes that looks potentially useful is the requirement to allow re-use of disclosed datasets in line with a licence which will be stipulated under the s.45 Code of Practice . This has the potential to clear up the issue that @copyrightgirl commented on in her posts here and here on the blog in recent weeks. But why restrict this to ‘datasets’? If they made provision for re-use of all disclosures, it would resolve the tension between FOI and copyright law for good, especially in relation to things like WhatDoTheyKnow.
  • Publication Schemes – req to publish datasets disclosed. Why not all disclosed info? There are some interesting proposals in terms of Publication Schemes, but again they focus on ‘datasets’. Basically it appears to be introducing mandatory disclosure logs but only for disclosed datasets. Why not make it mandatory to publish all disclosed data? Would help FOI Officers who have been battling for years to get Disclosure Logs past IT managers and web masters who think they upset their nice web design.
  • Gets rid of loophole for companies set up by 2 or more public authorities – good.
  • Martin Rosenbaum of the BBC has commented that he thinks the Bill introduces more freedom for the Information Commissioner in procedural matters – not sure I got that, but may well be true.

So overall, nothing really to write home about. Except I have. One to keep an eye on I think.

Archives and Accountability

I’ve noticed a couple of Tweets today about threats to Archive Services/Record Offices. Notably at Doncaster, one of two archivist posts has been marked for the axe. And in Croydon, although it appears that the Local Studies Library has been saved for the time being, the Archives are still under review. These won’t be the last stories we’ll hear about Archives services being under threat.

Why is this important to those interested in openness? Archives are the ultimate form of accountability – or should be. We are used every new year to the disclosures from the National Archives as public records become just that. We find out the truth as to how decisions were reached. The true legacy of politicians and key figures becomes clear. And soon we’ll reach that point even earlier – the 30 year rule is in the process of becoming the 20 year rule.

Information that is exempt today under FOI will be open to all tomorrow. And the Archivists of this country are the people who will make sure that happens. The importance of their work, be it in the National Archives or in often long under-resourced local government Record Offices is often overlooked. But if you care about freedom of information you should care about what happens to your local Record Office and the Archivists who work there.

In the coming months and years, as councils and other public bodies seek to balance their books, there will be numerous suggestions that Record Offices and archivists should be cut. They’re potentially an easy target. Often they don’t have huge numbers of visitors walking through the door. But they will increasingly be making information available online and serving a much larger constituency around the world. They are a superb source (often untapped) for stories of local interest for journalists. And their true value lies in the long term – the ability for future journalists and historians to find out what really happened. If Record Offices are axed, records that might have been retained for future access will in many cases just be destroyed. Accountability will suffer.

Keep an eye on your local council and make sure that they know the current and long term importance of these services. Don’t let the need for short-term cuts destroy our ability now and in the future to interrogate the past.

Guest post – re-use of disclosed information

Emily Goodhand, Twitter’s @copyrightgirl, returns with her second guest post for FOI Man.

Re-using Public Sector information: what you need to know

There’s been a lot of interest and discussion around the government’s Open Government Licence and whether it covers information released under FOI. In short, it does not. The Open Government Licence (OGL) allows others to re-use information which has been made publicly available (i.e. on the public facing web) by a government authority so that individuals wishing to make use of this information do not constantly have to write for permission to do so. It is important to note that not all public authorities have adopted this licence, and that the licence only applies to works which have been published. Any information received by an applicant under FOI will not automatically fall under this licence, and therefore permission would have to be sought via a request to re-use this information before further use (including reprographic publication) could be made.

Why would a Public Sector Organisation be reluctant to apply an Open Government Licence to information released under FOI?

The OGL reads:

“You are free to:

copy, publish, distribute and transmit the Information;

adapt the Information;

exploit the Information commercially for example, by combining it with other Information, or by including it in your own product or application.”

The wide scope of this licence means that it is unlikely that public sector organisations will adopt it as a blanket licence to cover all of the information that they release under FOI.  It is more likely that a selective approach would be favoured, in that some information requested would be released under the licence at the point at which it is sent to the requester, but not all.  This would very much depend on the type of information being requested, which may not fall under an FOI exemption but may prejudice the organisation’s interests were it to be used for commercial purposes. West Middlesex University Hospital NHS Trust’s website provides some excellent examples of why a public sector organisation would not wish to release information under the OGL:

“Providing access to information does not give an automatic right to re-use it. Re-use can include publishing information or issuing copies to the public. Examples might be private sector companies wanting to re-publish our documents on their website as part of a commercial service, or wanting to publish our images in commercial publications.”

It is important to take these concerns into account in order to get a fair and balanced view of why, at times, a public sector organisation may not allow re-use of information in certain ways.

The Re-Use Regulations

Public sector information which is publicly available but is not released under the Open Government Licence is still subject to the terms laid out in the Re-Use of Public Sector Information Regulations of 2005. Information received under FOI from a public sector body is subject to these regulations with the following exceptions:

  1. The Regulations do not apply where a third party owns relevant intellectual property rights in the document (i.e. the document was written by an independent consultant who retained the copyright in the work)
  2. The Regulations do not apply to public service broadcasters and their subsidiaries, educational and research establishments, or cultural establishments

A request for re-use of information can be submitted to the remaining authorities who are not excepted from the regulations at the same time as an FOI request. The FOI request will be dealt with first, as re-use of information is impossible if access to that information is not granted. It is up to the institution as to whether it chooses to grant re-use of the information supplied, and it is entitled to make a charge for the re-use of the information. Complaints are handled by the Office of Public Sector Information, and more information about the re-use of public sector information is available from the National Archives.

Fair Dealing: what the Copyright Act allows you to do

The CDPA makes certain allowances for the use of work without the need to request permission to use it from the copyright holder. The main defence is fair dealing with a work for the purposes of: a) non-commercial research and private study; b) criticism and review; c) news reporting. It should be noted that photographs are specifically excluded from the fair dealing defence for the purposes of news reporting.

The emphasis in the Act is on the word “fair” – although it is not specifically defined, various case law has indicated that the work used must be no more than is necessary to make the point (i.e. an insubstantial amount) and must not have a detrimental economic impact on the original work. In addition to this, other factors also come into play, such as whether the work is published or unpublished, what the motive was for the dealing, and whether the purpose could have been achieved by different means. The defence, if relied on, should be used carefully, as one court found the copying of as little as 11 words to be copyright infringement. However, it is generally accepted that journalists can rely on this defence to re-use insubstantial portions of the information they receive as a result of an FOI request for the purposes of news reporting, with the exclusion of photographs.

Third parties and FOI

Journalist David Higgerson highlighted a case yesterday where the Department for Transport (DfT) had refused a request for detailed information about overcrowding on trains. The exemption applied was s.43 of the FOI Act, which can be used to protect information which would, or would be likely to, prejudice commercial interests.

First off, let’s give credit where its due – DfT should be congratulated on their openness in publishing all their responses to FOI requests online routinely. This probably wouldn’t have come to light if they didn’t do that. Not many public bodies (not even my own) take that approach. And I’d also say that whilst it’s not perfect in its wording, generally speaking, the response is actually pretty detailed and helpful notwithstanding the decision not to disclose all of the information.

But David draws attention to a serious issue. The key reason given by DfT was that the Train Operating Companies (TOCs) had refused permission for details of passenger numbers to be disclosed. DfT are putting together a new dataset which relies on the cooperation of the TOCs, so they were concerned that if they disclosed such data, the TOCs might not help with the new project.

This highlights a key problem for public bodies answering FOI requests. All information we hold is subject to FOI, but not all of it was created by us. In my experience, one of the most common reasons why exemptions are even considered is to avoid offending third parties. And sometimes third parties can be pretty aggressive in making clear that they don’t want the information that they supplied to be disclosed. Often, they just have no understanding of what FOI means for public bodies, even though they are usually informed in advance about the possibility of disclosure, and we try to explain the situation again when requests come in.

Public authorities need to get better at standing up to third parties. In my experience, some are too inclined to just accept the third party’s view that information should be withheld. Government departments in my experience are particularly prone to this. We have to remember that it is our decision in the end, and not the third party’s.

If the Government is serious about openness, it really needs to tackle the attitudes of the organisations that it does business with, especially amongst those private companies that provide services to the public. If they can’t be made to co-operate, they should be at least threatened with being brought under the auspices of FOI. Then they’d understand the situation much more clearly.

The most powerful third parties even attempt (and sometimes succeed) to change the law to avoid their information being disclosed. A few years ago, MPs fed up with their correspondence to local authorities being disclosed in response to FOI requests tried to enact an amendment to the legislation to specifically exempt any correspondence from MPs. Oh, and while they were at it, they tried to sneak in an exemption for both Houses of Parliament. Eventually that proposal was defeated, but only because once it had passed the Commons, their Lordships were too embarrassed to support it any further.

Yesterday, by Statutory Order (following the passing of the Constitutional Reform and Governance Act by the last Government), the FOI Act was amended to strengthen the exemption for Communications with the Royal Household (s.37). From now on, public authorities will be able to (and will no doubt be leant on to) use an absolute exemption (ie with no public interest test) to withhold correspondence between the Monarch, the Heir and the second in line to the throne and themselves. So in future nobody will be able to find out if the Prince of Wales is seeking to influence planning decisions or the design of hospitals. This only came about, I suspect, because some public bodies felt that there was a public interest in disclosing such correspondence in the past, and pointed out that in this circumstance, they had to disclose the correspondence. That won’t have been happily received.

Some third parties can be very powerful indeed.