The Mysterious Veto Returns

FOIMan comments on the latest application of the Section 53 veto.

Last year, Lord Judge, the Lord Chief Justice, said the following of the ministerial veto which is set out at section 53 of the Freedom of Information Act:

“The possibility that a minister of the crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration. ” (The Guardian, 9 July 2013)

Nonetheless, The Guardian, whose attempts to overrule the use of the veto in relation to Prince Charles’ letters to ministers had led to this comment, failed in their attempt to have the veto overturned. And now the veto has been applied again, this time by the Transport Secretary, Patrick McLoughlin, to prevent access to a report about HS2.

What strikes me first of all in this case is that the Cabinet Office (who originally received and dealt with the request) haven’t even troubled those “superior court[s]“. It looks as though the veto has been applied before the case has even been considered by any kind of Tribunal. So no court – just the Information Commissioner – has been overruled in this case.

The Government has published its reasons for applying the veto. It disagrees with the Information Commissioner on two significant points:

  • it doesn’t agree that the report is “environmental information”, and therefore that the request should be handled under the Environmental Information Regulations (which place an explicit obligation on public authorities to apply a presumption of disclosure when considering whether or not to disclose information)
  • it doesn’t agree that the public interest is in favour of disclosure.

The Information Commissioner’s fundamental argument in this case is that this report relates to an earlier decision, already announced to Parliament. Whilst HS2 work is obviously still ongoing, this work is the result of the findings of the report – the phase of work that the report belonged to finished when the HS2 proposals were announced. The timing of the request – 7 months after the announcement – is therefore a major argument in favour of disclosure.

This argument will be familiar to long-term FOI watchers, as it was a similar point in dispute when the Government opposed the disclosure of the NHS risk registers a couple of years ago. On that occasion, they also applied the veto, but after hearing the view of the First Tier Tribunal.

This may explain why Mr McLoughlin and his Cabinet colleagues have chosen to go straight for the veto this time. But it is sad that the Government appears to have decided that instead of testing their arguments in court, it is better to wield the veto. If this becomes standard practice, then FOI and the law are the weaker for it.

 

Donate to the Campaign for Freedom of Information

FOIMan renews his call to support the Campaign for FOI.

Last summer I wrote about the financial difficulties that the Campaign for FOI was experiencing and called for anyone who has benefitted from or believes in the importance of FOI in the UK to provide their support. The Campaign still needs your help, and once again I’d like to urge anyone who doesn’t already donate to the Campaign to do so. Of course, if you can help in other ways, I’m sure the Campaign would love to hear from you.

Since June this very site has featured a link in the top right hand corner so you can easily find out how to donate. If you’re an FOI Officer, a campaigner, a journalist, a media organisation, a charity, or just plain curious, you’ve almost certainly benefitted from the Campaign’s good work in the past – first of all campaigning for the Act in the first place, then pushing the Government and Parliament to strengthen the Bill, and since then raising awareness about attempts to weaken the right to know.

So do it now. Go on. You know you want to. DONATE!

Practically Speaking Part VI: Looking for Approval

FOIMan brings you the final (for now) part of his series for PDP’s Freedom of Information Journal.

Yes, it’s here at last, the final instalment in this series of articles about the practical difficulties of applying FOI in the workplace. This final piece looks at the fraught issue of who and how responses should be approved. It looks at what can happen when senior or political figures get too involved, and whether Press Officers should be allowed to comment on responses or be part of the approval process. So nothing too contentious then…

Practically Speaking Part V: Holding Your Own

FOIMan brings you the fifth in his series of articles for PDP’s Freedom of Information Journal.

Before Christmas, I started publishing a series of articles that were published in last year’s Freedom of Information Journal. This week I bring you the fifth in the series which looks at the difficulties in establishing whether information is held by public authorities. I’ll be returning to this subject at both the Information & Records Management Society Conference and PDP’s Freedom of Information Conference later this year.

In the sixth and final of the series – for now – I take a look at the issues surrounding approval of FOI responses by senior colleagues and the involvement of Press Officers in this process. Watch out for that next week.

Why is higher education seeing a big rise in FOI requests?

FOIMan puts a report on FOI from Times Higher Education into context.

“The number of Freedom of Information requests received by UK universities has risen by about 40 per cent in the past three years…”

begins a piece in this week’s Times Higher Education. Readers who’ve been following this blog for a long time (ie for the last month) will remember that I used to be an FOI Officer for a higher education institution, so this article caught my eye.

Certainly my experience in a small college of the University of London supports these findings. Up to the point that I left in December we had received almost 150 requests. When I joined SOAS in 2010, the number was 69. Not long before it was less than 50. SOAS is a fairly small institution and doesn’t always get included in the “round-robin” requests sent to universities so the impact will be even greater in other institutions. THE cite York (home of the largest plastic bottomed lake in Western Europe, fact fans) as receiving 416 requests in 2013.

So why is this happening? Well, as a recently demobbed Higher Ed FOI Officer I can offer some educated guesses. Some have pointed to the number of requests being made by student journalists. Certainly a large proportion of the requests I dealt with in the last 6 months (which was primarily when the increase happened in 2013) came from that demographic. The reason for this sudden burst in activity? Well, anecdotally there is speculation that university journalism courses are setting assessments requiring students to make FOI requests.

Is this ethical? Personally, I don’t have a problem with it if the students are uncovering useful information in the public interest, but if it is merely a box-ticking exercise as part of a course, then I think course convenors ought to be asking themselves if there is a better way to educate students in the use of FOI. And perhaps asking FOI Officers in their own organisations to assist in developing courses which empasise that FOI should be used responsibly and as part of wider research employing a range of techniques.

The other reason that I think universities are seeing increased levels of requests is to do with the maturity of the legislation. When I worked in the NHS, the levels of FOI requests were first of all low compared to my experience in local government. But shortly after I joined the Trust in question (in 2009), the numbers started to rocket. And now we see the same happening in universities. (An alternative theory is that it’s my fault, but as this is happening across the country, I think we should probably discount that). What appears to be happening is that awareness that particular areas are subject to FOI increases over time. In 2005, everybody knew that central and local government were subject to the Act and wanted to try it out to dig out political stories. As time has gone on, people have become more aware that other areas are covered, and what’s more their use of the Act has become more sophisticated. Now it is common practice for journalists and others to send FOI requests to a number of institutions to compare the results, so numbers across a whole sector rise. It is also worth noting that higher education has been in the news a lot more in recent years due to tuition fees and other government reforms. (A mischievous element in me wonders whether the fuss Universities UK made in 2012 in its attempt to influence the post-legislative scrutiny may have backfired rather magnificently).

So my theory is that the rise in requests is partly due to a novel development (students being given FOI requests as homework), partly just the natural evolution of FOI awareness, and partly higher education drawing more attention to itself.

The THE article was based on an FOI request submitted to higher education institutions in December. I remember it well as it was one of the last that I answered before I left. It asked for the numbers of requests submitted over each of the last 3 years, together with the numbers answered late, how many had been refused and how many times each exemption had been used.

As well as reporting on the rise in requests, THE has been pretty scathing both in the main article and in a withering editorial about universities’ attitudes to FOI based on both their experience with the response to this particular request and on the statistics disclosed. Whilst in the past I have been the first to draw attention to skepticism in higher education about FOI, I do think the THE criticism on this occasion is unfair.

Firstly, I think THE’s methodology meant that the likelihood of receiving a complete set of useful responses was minimised. If you want to find out how a public body performed under FOI in a calendar year, complete figures will not be available until February of the following year at the earliest (this is a matter of pure mathematics – the last day that counts for this purpose is 31 December, so 20 working days after that, taking into account all UK bank holidays, will be in early February). Furthermore, although public bodies are obliged to answer requests within 20 working days, practical obstacles do sometimes make that difficult. If you make an FOI request in December to institutions that tend to close over the Christmas period, then perhaps it isn’t so surprising if those institutions struggle to meet a deadline, especially if you are also aware that they are experiencing a significant spike in workload. If the same request had been made in March, say, the journalist would have received many more responses on time and complete data from each responding institution.

THE also claimed that a lot of universities didn’t provide all the information. Certainly I didn’t. I pointed the journalist in the direction of published data (not just for my university but for several) which provided everything he wanted for 2011 and 2012, citing the exemption for information that is readily available (s.21). I also cited s.22 – future publication – for the 2013 figures as they will also be made available when complete (arguably I could also just have said that we didn’t hold the information given that it wasn’t yet complete). I did provide an interim total for the requests received. No doubt this counted as a refusal for the purposes of the article, but I effectively provided most of what was asked for and only refused to preempt a task that will be carried out very soon.

The article and the editorial make much of the fact that of those universities that provided data, there were big variations in the percentage of requests that were turned down. But there is nothing odd about this (indeed, it would be more suspicious if they were of a uniform nature). Firstly, percentages are meaningless without the numbers involved. Given that some universities had received 50 – 60 requests in 2013, and others had received many times that amount, this is an important point. Secondly, within the higher education community there is huge variation in the issues that are faced. SOAS is a humanities and social sciences college, so won’t hold information on scientific or medical research or have any of the issues associated with that research. Some universities have major collaborations with the private sector whilst others don’t. It may cost larger universities more to locate information as it is spread over a larger geographical area and in more places. Smaller universities may have less resources to establish systems to manage their information better and therefore bring the cost of retrieval beneath the appropriate limit. And so on. There are many and varied reasons why different universities might be more inclined to withhold information than others. There’s no need for a conspiracy theory to explain these variations. (The ICO, asked to comment, said more or less the same thing).

I welcome journalists scrutinizing the performance of public bodies in complying with FOI, and also highlighting the growing pressures that are faced by those tasked with managing FOI requests. But if the methodology used is flawed, and the conclusions made hyperbolic, there is a risk that far from encouraging a positive approach to FOI, skepticism about FOI within public bodies will grow.

Making Information Law Work For Everyone

FOIMan makes a confession and sets out his plans for the year ahead.

Like many people, today is my first day at work after the festive break. But, as I wrote back in November, the beginning of a new year has even more significance for me in 2014 than in previous years.

Many of you have been kind enough to write to me to wish me well in my new venture, for which I am very grateful. Some of you have asked what services I’ll be offering and when these will be available. So I’m going to kick things off this year with a brief outline of what you can expect from me.

First of all, a confession. I’m not as prepared as I’d like to be right here and now. When I first envisaged going solo this time last year, I did so in the knowledge that I had a whole year to plan, develop and market my services. The trouble was, of course, that I forgot to consider all those things that I still had to do in that year – go to work, honour existing speaking and writing engagements, decorate two rooms of my house, the housework and occasionally spending time with my friends, family and wonderfully supportive wife. This sense of not being ready is, I am told by friends who’ve trod this path before, entirely normal, so of course I am now anxiety-free (those who know me will recognise this as the massive porky that it is).

One of the reasons that I am, at least, less anxious, is that much is in place. I write this post not at my dining room table as with so many of my previous posts, but sat at a desk (in one of those newly decorated rooms, which is now my office). And even more excitingly, there is work in the diary. Most of this will be delivered through Act Now Training, who I’ve now been working with for nearly two years, and have been very encouraging as I enter this new phase of my career. I’ll be continuing to deliver Practical FOI, for those FOI Officers and others who want a course focussed on the “how” of compliance; and the Data Protection A-Z course, which gives an overview of the Data Protection Act. But in addition, I’ll be running new courses on records management (including one focussed on Scottish public authorities), and Practical FOI’s sister course, Practical DP, which will look in more detail than the A-Z course at how organisations can comply with the Data Protection Act. If you’d like to find out more about these courses or want to book a place, do please take a look at the Act Now Training website.

It will be a busy year on the conference circuit again. Next month I’ll be chairing a Modernising Government conference on Freedom of Information and transparency, and then in May, delegates at the Information & Records Management Society Conference and at PDP’s Freedom of Information Conference will be able to hear talks from me. Looking further ahead, I’ve been invited to take part in a very exciting project in the Autumn, more of which later.

As well as all this, I have a small but growing schedule of in-house training commitments. If you’re interested in me delivering training in freedom of information, data protection or records management in your organisation, please do get in touch (details below). I can offer competitive and affordable rates, and of course, inviting me to train a room full of your colleagues is much more cost effective than sending them all on a similar external course.

I’m also available if organisations need advice on matters relating to freedom of information, data protection and records management. In due course I will be advertising more details of this service, but if you want some help in the meantime, please don’t hesitate to get in touch.

Marking this new phase, FOIMan now has a new strapline: Making Information Law Work For Everyone. This sums up my attitude to information rights. I don’t see a conflict between organisations, including public authorities, knowing how to apply information rights legislation correctly, and members of the public, journalists, and others exercising their rights under the same legislation. So far I’ve talked about services aimed at the first half of that relationship. But I’m very keen to find ways to work with those wanting to make effective use of the Freedom of Information Act in particular. So watch out for more on this as the year goes on, and again, if you have any specific requirements, let me know.

I started off this post by confessing that I’m not as prepared as I’d like to be. But it would be pointless to start out with everything established and organised the way I’d like it to be. If I wanted to turn up to work every morning knowing what to expect over the coming year, I wouldn’t have chosen to work for myself. This is the beginning.  Things will move very quickly. It’s exciting. So stay with me in 2014 for more on information rights and management, and maybe a little of my adventures in the new world of running a small business.

To contact me to enquire about any of my services:

You can email me or you can call me on 020 8778 2331 (landline) or 07799 654509 (mobile).

Practically Speaking Part IV – take it to the (appropriate) limit

The fourth in FOIMan’s series for PDP’s Freedom of Information Journal covers the appropriate limit – when is it acceptable to refuse requests on cost grounds?

This time my article for PDP looked at section 12 of the UK FOI Act and the associated regulations that set out the circumstances in which public bodies can refuse requests because they will cost too much to answer.

 

Practically Speaking Part III – Getting Vexed

FOIMan brings you the third installment of his series for PDP’s Freedom of Information Journal.

In part III of the Practically Speaking series, I looked at the fraught subject of how to apply the provision for  vexatious requests under FOI. The piece was primarily informed by the important decisions made by Judge Wikeley back in February. As you’ll see from the postscript, things had moved on again by the time this piece came to print, but the key points I made here are broadly still relevant. And it features Monty Python and a judge riding to the rescue.

The next instalment covers the appropriate limit – when can requests be refused on cost grounds? Part V will cover whether information is held, before the series concludes (for now at least) with a look at the difficulties and ethics of who should be consulted before a response is sent out.

 

 

A Tale of Two Commissioners

A few months ago I brought you a guest post from Dr Joe Reddington, an academic researcher who uses FOI as a research tool. I’m pleased to bring you a follow up post from Joe on his experiences of dealing with both the UK and Scottish Information Commissioners. I thought it was interesting as the feedback I’ve heard about the Scottish Commissioner’s Office has been largely positive, but this and Joe’s previous post give a different perspective. I should stress that as with all guest posts, any views expressed are the author’s and don’t necessarily reflect my own.

Hello again!

In my previous guest post I wrote about problems with burden of proof in the Office of the Scottish Information Commissioner (OSIC). Today, I’ll highlight another issue with OSIC.

Recently I completed a study into the supply of communication aids and, in the process, built an open-access data-set for other researchers. It was a worthwhile project that’s been (I believe) able to make a small difference in the lives of people I care about. The project required a set of FOI requests to be sent out to NHS services to find out what equipment they were buying to help people speak (The study report includes some thoughts about the Freedom of Information processes).

Of course, even though both sides take every effort to minimise them there are always confusions, miscommunications, and the like that can generally be straightened out by a phone call (I don’t think it’s coincidence that the two cases I’m about to talk about had an effective policy of either not answering the phone or simply refusing to discuss). Sometimes you can’t straighten them out, and so you have the option of asking the ICO or OSIC to review the case.

I recently had two of these finish in the same week, and I think it’s instructive to look at how the appeals were dealt with.

The first example is Suffolk County Council, which was a fairly difficult request for a few reasons – emails ignored, phone messages ignored, the public body counting any reminder as a separate FOI request and a complete refusal to engage in a way that was outside of the algorithm they were using, even to the point of repeatedly stating variations on “We’ve given you our answer, if you have any further requests contact the ICO”, which is an interesting attitude because it suggests that the ICO is so unlikely to take action against a public body that the public body feels comfortable just using them as their customer relations department. As it happens I don’t believe there was malice in this, but I do think that nobody in a council suffers if the FOI team is very understaffed…

(While I’m on the subject, I do think that the below, is an *interesting* interpretation of the internal review process….

Image text reads:"I take your point about an internal review prior to matters being referred to the Information Commissioner. The legislation does, indeed, require such a process. Without stating that explicitly, I took your telephone call and e-mails to be just that, i.e. dissatisfaction with the how the requests were handled and so, in effect, a requirement for a review - which is what I did and then endeavoured to answer your concerns. Hence, the suggestion that you refer any continuing dissatisfaction to the ICO."

So I contacted the ICO, gave the details, and made it clear that I wasn’t looking for anything punitive, I was just looking for data so that I could have something to work with. Granted it took a long time to work it’s way though the system (eight months), but when it did reach an officer, they paid attention, checked what the problems were, kept both me and the public body in the loop and eventually brokered a compromise (for those keeping score at home it turned out that the LEA simply hadn’t purchased any equipment, which is worrying, but not in a way that’s relevant to this post). As it happens, the ICO are going on to address a number of procedural things that the LEA did incorrectly, but that’s beside the point. A conversation was had, and as a result of the conversation the relevant data reached the public domain, and can be used for the public good, and that’s largely because the investigating office took the time to pay attention to the principle not the algorithm.

So that’s the good (apart from the eight month backlog) approach.

By contrast, I also just had a case concluded with OSIC. I’d made a request to Borders NHS Health Board in January 2012 and, to be fair to them, they had provided some data that was relevant, but hadn’t actually provided the bit that we were studying (they gave a list of a few purchases, but didn’t have the years of purchase, which is important for us because equipment purchased this year is probably still working, but equipment purchased in 1990 probably isn’t). Over the next year I emailed periodically and politely, I rang semi-regularly, and got a range of different reasons that contradicted each other, and was just bounced around a system that was made up of people who were too busy. Eventually it escalated to an internal review and after over a year of chasing I filled out the form in January 2013 and sent it to OSIC. (This is actually the same request I looked at in my previous post, but I’m now looking at a different aspect of it).

On the 11th of Feburary I got this response:

As you did not request a review within 40 working days of receiving the authority’s  response, your application is not valid in terms of section 47 of FOISA and the   Commissioner does not have the power to carry out an investigation into your case.   I have reviewed your application and note you did not request a review until 3   December 2012, some 10 months after the initial response dated 8 February 2012.   An authority is not obliged to carry out a review if it has been submitted out with the   40 working day timescale. I note the authority’s letter of 4 December 2012 states that   they will not be carrying out a review. I’m afraid the Commissioner cannot ‘make’ an   authority carry out a late review.Personally I think this is a pretty awful constraint because it is a direct disincentive for the public to engage with the authority, to open a dialog, to withdraw the bits of the request that are genuinely difficult in favour of getting the information that is most important and all of those little ways humans can make the world easier for each other. But fair enough, them’s the rules. I hadn’t read the fine print, I should call a spade a spade and give up. Clearly the time I’d spent badgering, being nice, making phone calls and reminding people was not the way public engagement is meant to work – it should be immediate legal sanction or nothing…

But here’s the crazy bit. The lady at the other end of the phone told me I should just make the same request again. Then it would be fresh and if the same answer was given, then they could investigate.

Let’s replay that, the OSIC has a rule which I don’t particularly agree with, but can largely understand where they are coming from in terms of reducing workload and the like. But the fact that their staff can recommend a course of action that just duplicates effort is beyond me.

Sending the request back in to NHS borders was the first time I’ve ever been embarrassed about an FOI request. As you can imagine, Borders, on the last day of the requisite 20 working days, sent me the same reply as they had the previous year. I’d been assured by OSIC that I had to ask for the internal review again so I did and 40 working days later we were back to the starting point again.

FOI campaigners are often accused of wasting the time of public authorities, but I think we can agree that this ‘well apply again’ approach is not a process that improves public engagement and trust of public bodies…

 

 

 

Practically Speaking, Part II – Game, Dataset & Match

FOIMan brings you the second in his series of articles for PDP’s Freedom of Information Journal.

A couple of weeks ago I wrote here about the series of articles I’ve been writing for PDP’s Freedom of Information Journal. The first article was on deadlines, and this week I’m making available my piece called Game, Dataset and Match, which, as the more perceptive amongst you will have gathered, is about the new dataset requirements that came in on 1 September. You should note that this article was published much earlier in the year before the Information Commissioner and Ministry of Justice had published their guidance/finalised Code of Practice, so is a little out of date already. (The general trend this year has been that if I’ve prepared a talk or an article, a major development supercedes it just before publication or presentation. All I need now is to find a way to exploit this extraordinary gift.)

However…in September I was also asked to write on this subject for Privacy Laws & Business, another information rights publication, and as a special bonus, I have their permission to reproduce that piece here as well. Bang(ish) up to date. So there you go, two articles on datasets and FOI for the price of one right here at foiman.com.

Next week I’ll be bringing you a piece on handling vexatious requests. And there may be one or two other posts in the next week or so (including another guest post from academic researcher Joe Reddington), so keep your eyes peeled.