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FOIMan News!

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

Mr Gove’s Internal Review

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

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

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

Whitehall Ornithology

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

New FOI Media Masterclass Launches

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

Ten things practitioners hate…

FOIMan writes about the ten things FOI requesters do which most annoy practitioners.

freedom-of-information-graphic-smallBack in March, the PDP Freedom of Information Journal published a piece by me listing the ten things that requesters hate most about the way their requests are handled. I provided access to a copy of the article here, and promised to bring you a further piece looking at this from the opposite perspective.

So here’s my latest piece for the Journal on Ten Things FOI Practitioners Hate Most. How do FOI requesters cause frustration for FOI Officers? Feel free to comment if you agree or disagree with these!

Why the transparency backlash must be fought

FOIMan fears a backlash against FOI and transparency in the UK – and highlights arguments over their value in the US.

Sunrise or sunset for transparency?

Sunrise or sunset for transparency?

One of my fears following the election of a Conservative majority government earlier this month is that it may herald a backlash against FOI in the UK. My Act Now Training colleague, Ibrahim Hasan, has written a really good post outlining what changes may be in the offing under this government. Fans of transparency have reason to be pessimistic.

The Prime Minister has gone on record with his criticisms of FOI. Most recently, he expressed a desire to The Times to:

…declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FOI…

I’ve written previously of my suspicions that Simon Hughes, the former Liberal Democrat Justice minister, had opposed attempts by Conservative colleagues to make it easier to refuse requests on grounds of cost. That defence is now gone. The new Justice Secretary, Michael Gove, is unlikely to be enamoured of FOI given his previous experiences.

This antipathy at the top will be encouraged by others who are sceptical of FOI’s value. Given how readily the government was moved to strengthen the exemption protecting correspondence with the monarch and her heirs, Clarence House and the Royal Household will feel able to push for more control following the release of Prince Charles’ correspondence. The Local Government Association will issue more press releases about dragon attacks, exorcisms and asteroids. Universities UK will argue once more that higher education institutions ought not to be covered by FOI. Businesses and charities in receipt of public funding will express a sigh of relief that Labour’s plans to extend FOI to them will not happen.

A reaction against FOI will not be unique to the UK. Other countries are experiencing a backlash against their transparency achievements. Alasdair Roberts, an academic who has been studying FOI in Canada and the US for decades, has written a fascinating paper which seeks to refute criticisms of transparency in the US.

The US critics argue that transparency has become a knee-jerk reaction to any perceived problem in society, but that often it creates more problems, making government and institutions less effective. Roberts’ response addresses these criticisms directly with three arguments.

Firstly these writers tend to conflate several forms of transparency. For example, requirements on certain sectors and services to publish performance indicators actually help governments achieve their goals, and ought to be distinguished from accountability requirements on the government such as FOI. Not all transparency has the same aims or results.

Secondly he argues that when there is a crisis, transparency is not the first reaction of the public or politicians. Instead the initial response tends to be to enhance control over events. Calls for transparency tend in fact to be the result of expansions of executive and bureaucratic power. So in the 1960s and 1970s there was a big increase in executive power in the US which in turn led to more calls for transparency – resulting in the US FOI Act and similar legislation. It is possible to see parallels with the rise of “presidential-style” government in the UK especially under Margaret Thatcher and Tony Blair, and for example, executive politicians in local government, resulting in our FOI Act and other openness rules.

Thirdly what Roberts argues is that when we see calls for more transparency, it is not because people want to know more about the institutions that are already relatively open to them; it is usually because the way things are done has changed and therefore more transparency is required in order to maintain the same level of openness as before. We have seen this in the UK with the outsourcing of public services which in turn has led to calls for FOI to be extended.

Roberts finishes by making an important point, as valid in the UK now as in the US and elsewhere. Transparency and FOI critics want advocates to accept the status quo. But change in government and administration is constant. If transparency isn’t similarly adjusted, it will naturally erode. To preserve our right of access we must fight, not just for what we have, but for more. If we fail to do this, we will soon find ourselves in the dark just by standing still.

Charles’ Letters: Will Dominic Grieve?

FOIMan reflects on last week’s long-awaited publication of correspondence between the Prince of Wales and government ministers.

UK Supreme Court

UK Supreme Court

FOI stories are like buses. You wait ages, decide to walk, and then three or four drive past you. Last week I took a long-planned week’s holiday only for the new(ish) government to make significant appointments, the Court of Appeal to rule on vexatious requests, and of course for a 2005 series of FOI requests to finally achieve the disclosure they sought.

Consequently pretty much everything there is to say about Prince Charles’ letters to ministers in the Labour government back in 2004 has already been said. But I’m going to try and squeeze a few more drops of juice from the pith nonetheless.

Two points struck me. The first was the reaction to the letters. A panellist on Have I Got News For You? described them as “boring”. And that just about sums up everybody’s comments on them. Far from the skies falling in, or crowds storming Clarence House or Buckingham Palace calling for a republic, the letters confirmed what we already knew – Charles has strong views on certain subjects such as architecture and agriculture. He has expressed most if not all of those views publicly in the past, so all we now know is that he has said the same things to government ministers. Although, like many, I would prefer Royalty to keep its distance from government in anything other than a symbolic way, there’s no suggestion from this correspondence of anything improper.

Some people will argue that the Guardian’s campaign to procure this release was therefore a waste of time and money. It really isn’t. Evidence that there isn’t a problem is still valuable.

What was a waste of time and money was the government’s determined efforts to prevent release. Time and again we see these long battles to prevent disclosure of correspondence. And very often the offending missives are released and turn out not to be of the remotest interest.

Public bodies continue to battle to protect principles and conventions. This is despite the fact that their own FOI Officers, legal advisers, the Information Commissioner, the Tribunals and the courts constantly repeat that FOI exemptions are not designed to protect abstract traditions. To apply exemptions successfully you need to demonstrate that meaningful harm will be caused by the specific disclosure. Breaking conventions does not automatically cause meaningful harm – it may cause change, but that’s what FOI was meant to do.

All of this has been said before, and it leads me to my second point. The Supreme Court decision which led to this disclosure overturned the use of the ministerial veto by the then Attorney General Dominic Grieve. When Mr Grieve issued the veto, his explanation was that the letters were “particularly frank” and disclosure “could seriously undermine the Prince’s ability to fulfil his duties when he becomes King.” Now that we’ve had chance to read these letters, these statements – particularly the latter – appear ridiculous. How does this square with what we know about Mr Grieve?

Whatever your political persuasion, Dominic Grieve appears to be a sensible and rational man. He is a barrister, and especially since leaving office last year has not been shy to criticise government plans to replace the Human Rights Act with a Bill of Rights. When he gave evidence to the Justice Select Committee in 2012, he was invited to give his views on the introduction of an absolute exemption for cabinet minutes. He gave a reasoned explanation as to why that might not be a good change to make. Mr Grieve is not one of those politicians who opposes transparency on principle. He is thoughtful and considered on these matters.

An examination of s.53

FOIMan examines the offending section of FOIA

So why was his justification of the veto so hyperbolic? I think I know this. Perhaps it isn’t very insightful but I think that it illustrates something of the position in which FOI Officers often find themselves. My guess is that Mr Grieve did not feel very strongly about Prince Charles’ letters. I suspect he came under pressure from others – Clarence House? Fellow Cabinet members? The Prime Minister? FOI Officers sometimes find themselves in disagreement with senior colleagues, and ultimately have to do what they’re told. Mr Grieve of course was a senior Minister, but may have found himself in a similar position nonetheless. We all have our seniors, and we all have to choose our battles. In the circumstances, I can understand why Mr Grieve may have felt this was not a resignation issue. He may well not even have bothered arguing.

When I was an FOI Officer and found myself in this position, I had to come up with arguments to justify the use of exemptions – even though I didn’t think they were justified. My arguments in such situations were undoubtedly weak and often exercised hyperbole. If challenged (which they rarely were), they would have fallen apart spectacularly. Perhaps this is how Dominic Grieve came to advance some uncharacteristically poor arguments in his explanation of the veto. He may well not have believed in them wholeheartedly from the start. So perhaps Dominic will not grieve his veto being overturned after all.

Opaque transparency

FOIMan observes that for all the legislation and talk of transparency over the last 10 years, it seems ever harder to find information about our public authorities.

We are all individuals!

We are all individuals!

FOI was supposed to open up our public bodies. They were supposed to publish information proactively and to answer requests from the public. Since FOI came into force, there have been other laws and initiatives all of which claimed to make publicly funded organisations more accountable. And yet every time I want to get hold of information, or get help with something, there seem to be more barriers than ever.

Let me give you an example. We want to carry out some building work on our house. Most of the work is internal, but we also want to make a minor change to the shape of the roof. Despite weeks of reading and re-reading the local council’s guidance on planning rules, we cannot work out whether we need planning permission. So we emailed the council and asked. Their response was that they couldn’t advise unless we paid for a pre-planning advice service. We decided to do this as we didn’t want to come up against problems later. Today Mrs F went to fill in the form that the council had sent us. At the top of the form in large unfriendly letters was the statement: “DO NOT USE THIS FORM TO ASK WHETHER YOU NEED PLANNING PERMISSION.” So the form we were told to use to seek advice on whether we needed planning permission tells us not to use it for that purpose. Attempts to speak to the council resulted in being left in a queue until eventually giving up. We want to do the right thing – are prepared to pay just to be told what the right thing is – but the council seems determined to avoid telling us anything useful.

I’m currently trying to find out who to market my services to in a range of public authorities. All I want to know is the relevant department, a job title and maybe a name of someone in Human Resources or Information Governance that I can send my sexy new leaflet to. I’m trying to find the people who manage FOI, or at least the ones who organise their training. But almost without fail, websites of public authorities now give very bland information and generic contact details. I’m having to guess. Of course, I could make FOI requests to find out, but surely it’s easier for them as well as me if they publish the details online?

I appreciate that some of you will have little sympathy for those wanting to send them marketing literature. But I would experience exactly the same if I was wanting to discuss my FOI request or a problem with service provision.

This appears to have got worse since FOI and recent transparency regulations. We’ve seen it with gov.uk – I’ve moaned about that before – but it’s spreading throughout the public sector. It’s one thing providing workflow services for various specific activities like ordering a new passport. Or publishing thousands of datasets. But if you, as a regular citizen, have questions or need help that doesn’t fit that model, you’re – forgive me – screwed.

There are tons of requirements now for transparency – not always complied with (I’ve seen at least one council site which appears to have given up on publication schemes altogether). But whilst there has undoubtedly been progress in some areas, in other ways things appear to have got worse. Often it’s the very measures designed to help that get in the way. Websites are increasingly designed to cut down on “clutter” (i.e. useful information) and focus on the delivery of the service rather than its organisation. But both these aims conflict with any attempt to resolve problems or do something the authority hasn’t predicted. Similarly the growth of “one-stop shops” has led to an inflexible workflow approach to almost any attempt to interact with some public authorities.

This is going to seem an odd thing for me to say, but it’s as if FOI and transparency rules are contributing to the problem. It seems to encourage an attitude of compliance and nothing more. If you want to find out the name and salary of directors at the council, you can find that – because it’s a requirement of the Local Government Transparency Code. But if you want to find out who to speak to about a planning matter, or even FOI, it’s almost impossible to find their contact details.

Transparency isn’t just about publishing what the government says you should. Nor is it about answering FOI requests within 20 working days. It’s about an attitude, a behaviour, which says we’re here to help. It’s about making it as easy for the public to see how decisions are made (and indeed to get decisions made) as possible and being proud to do so. It feels like public employees are increasingly hidden behind websites, rules and workflows. I suspect many of them would be as pleased as the rest of us if some of those barriers could be torn down so that they can do what they joined the public sector to do – help people.

Prince Charles’ letters and the Veto

FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations.

logoshirtOn 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob Evans made Freedom of Information requests to government departments for correspondence with Prince Charles, the heir to the throne. Ten years later, the Supreme Court has finally ruled that those letters (or many of them at least) must be disclosed. The full story of those ten years – together with many of the key court decisions – can be read in Matt Burgess’s excellent piece on the FOI Directory site.

This ruling is important – and for me, pleasantly surprising. After the Court of Appeal considered this case last year, I gave my analysis on this blog, and it turns out I was wrong. Though not entirely. My prediction was that the Supreme Court would rule that the veto was legitimate in relation to information subject to FOI, but that the European law that underpins the Environmental Information Regulations (EIR) would lead to a ruling that the veto cannot apply to environmental information. As it turns out, the Court ruled that the veto was not legitimate in either case, though there was more support from the Justices for the veto not applying to EIR (6:1 as opposed to a 5:2 ruling on the use of the veto in relation to FOI).

Huge congratulations are due to Rob Evans and the Guardian. Rob and the Guardian have been persistent in pursuing the release of the letters, even when all around (or many of us) were sceptical of their success. But I now want to consider the implications of this judgment for FOI and EIR.

Firstly, what does this mean in terms of the release of correspondence between members of the Royal Family and public bodies? One of the reasons that this case is so important is that it is now pretty much the last chance any of us will get to see what is said in correspondence like this, unless it is leaked (or relates to environmental matters – see below). This is because FOI was amended in 2010 – during the wash-up of the last government – to make the exemption covering relations with the monarch and their two nearest heirs absolute. This means that the government and other public bodies will be able to refuse all future requests for correspondence with Prince Charles under FOI. This ruling will not change that. But at the time of Rob Evans’ request, the exemption was subject to a public interest test, and that is how we have reached this point. If the correspondence is released, then that will be the last FOI disclosure of Prince Charles’ letters.

That said, the ruling is significant in terms of environmental information. Given the Prince’s known interest in environmental matters, it is likely that public bodies will hold many letters from the heir that would fall under the EIR. All the exceptions (the EIR equivalent of exemptions) under EIR are subject to a public interest test, and this judgment makes clear that Ministers cannot exercise the veto in relation to any decision to disclose information falling under EIR. So we may well see future disclosures of correspondence from Prince Charles relating to environmental issues.

But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.

It says that it is not enough for government ministers to disagree with Commissioner, Tribunal and Court rulings on FOI – the use of the veto has to be justified:

“…it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal.” para. 68 of the judgment

But it also confirms the view expressed by the Lord Chief Justice in the High Court decision on this case that the veto itself is “a constitutional aberration”. The ability of the executive to overturn the decision of a court of law:

“…would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.” Press Summary

So the effect of this ruling is to call into question almost all use of the veto, certainly up to this point, and potentially in the future. This is a huge defeat for the government.

Without wanting to pour cold water on well-deserved celebrations, that is exactly the reason why I think we need to be cautious. Governments don’t like huge defeats. And the veto has been used by both the last two governments. David Cameron has already released a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable. Speaking at 11KBW’s Information Law Conference last week, barrister Tim Pitt-Payne, who has represented the Commissioner as well as government departments in FOI cases, expressed his view that if this ruling went against the government, it was likely to reopen the question of the application of the section 35 exemption for policy formulation. When the Justice Select Committee examined FOI three years ago, it decided that section 35 didn’t need to be strengthened, as the veto provided a backstop for government if it needed to protect internal discussions.

Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.