FOI Man

March 21, 2013

The Information Commissioner earns his spurs, says Committee

Filed under: Data Protection Act — FOIMan @ 2:17 pm
Tags: ,

FOI Man highlights a new report from the Justice Select Committee calling for more help for the Information Commissioner.

Say what you like about the Information Commissioner’s Office (ICO), but without it, the handling of personal data and FOI would be a little like the old west. Your rights would only be meaningful if you could afford a gunslinger (or expensive lawyer for those not following the metaphor).

The Justice Select Committee has taken a good hard look at the ICO and identified some major issues. And they’re worth noting.

In particular, the Committee has highlighted a major problem which may result from the proposed EU Data Protection Regulation, which, if passed, will replace our existing Data Protection Act (DPA) in the next couple of years. The existing draft will see the end of notification, which currently requires every organisation that processes personal data (with a few exceptions) to register (or notify) with the Information Commissioner every year. Depending on the size of your organisation, you have to pay either £35 or £500 for the privilege.

And that’s the problem. The ICO’s data protection work is financed by this notification fee. So even if you don’t have much time for the form-filling, box-ticking nature of the notification process (I’m a little lukewarm about it in all truth), that fee is essential to ensuring that the ICO can do its job on DPA. If the regulation removes the requirement from our statute book, the ICO will be left with a shortfall of £42.8 million. Bearing in mind that some suggest that the ICO doesn’t do enough as it is – including criticisms from Lord Justice Leveson – and the fact that it is highly unlikely that the Government will want to fund data protection enforcement directly – this is a major problem. As the Committee says, “No one seems to know where resources would come from to replace the notification fee if it is abolished.”

Interestingly, the Committee is not impressed with Leveson’s recommendation to change the status of the Commissioner’s Office to create an “Information Commission”. It repeats the call (which it rolls out every time it looks at anything to do with the ICO) for the Information Commissioner to be made directly responsible to and funded by Parliament. This is just as regularly rejected by Government, but it’s worth another shot.

Others have pointed out that successive Governments have failed to commence existing sections of the Criminal Justice and Immigration Act 2008 which introduced custodial sentences for data protection breaches. Some have suggested that bringing these into force would have been a better way to deal with the problems discovered by Leveson than the Royal Charter. The Committee calls for the the sections to be brought into force.

Similarly, Government has the power to bring in regulations allowing the ICO to carry out compulsory audits of parts of the public sector. This power hasn’t been used much, and the Committee suggests that it should be now to allow the ICO to go into councils and hospitals when there appears to be a problem.

So overall, the ICO will be happy with this report. Let’s hope the Ministry of Justice take note and enact at least some of these recommendations, as otherwise, we’ll be back in the wild west. And I’m rubbish at riding horses.

 

 

March 18, 2013

The Exemption Index: Section 21 – information reasonably accessible by other means

Filed under: FOI Section 21,The Exemption Index — FOIMan @ 1:04 pm

In this post in the Exemption Index series, FOI Man looks at the absolute exemption at section 21 of the Freedom of Information Act 2000

Summary

“An Act to make provision for the disclosure of information held by public authorities…” Freedom of Information Act 2000, long title

So why not ask your local authority for a copy of any book they hold in one of their libraries? (Assuming they still have them, of course). And given that through the internet, all public authorities have access to all the world’s websites, why not use a public authority as your own personal research unit?

The answer is section 21. This exemption means that public authorities don’t have to provide requested information that the requesters could reasonably easily obtain for themselves.

It also acts as a carrot to encourage public authorities to publish more information. If requested information is in their publication scheme and/or on their website, they won’t have to supply it. Also, if an authority sets out how much it charges for its information in its publication scheme – in theory it can charge what it likes for access to that information.

The big question for both FOI Officers and requesters is…what is “reasonably accessible”?

Information affected

Any information that is publicly available, even if it has to be paid for (though see discussion below). Information that public authorities are legally obliged to communicate. Information listed in a public authority’s publication scheme.

Things that FOI Officers need to know

  • If refusing a request using this exemption, you must provide advice and assistance to the requester (FOI, s.16) on where they can obtain the information from
  • If the information is to be found amongst lots of other information on a website, you must explain where on the website the specific information can be located (Ames v Information Commissioner and the Cabinet Office, para 19). In other words, if it is on a website, give them a link to the specific document that contains the relevant information, and if necessary explain what page of that document the information is on.
  • If you’ve said in your publication scheme that you will charge for a particular publication, the exemption will apply even though the information is only available for that charge [if the charge is paid?] – recent case law suggests that there is no limit in these circumstances (Davis v Information Commissioner and the Health and Social Care Information Centre, para 26), though the Commissioner could arguably revoke approval for particular kinds of information if he was unhappy with the level of the charge
  • Arguably the level of charge will be important in other situations where information is only available for a charge, but what case law there is supports the idea that generally speaking, authorities can refuse requests even where there is a significant cost to access the information.
  • The Information Commissioner’s guidance suggests that, for example, if a piece of information is in a publication such as an annual report, but it is only a very small item of information, it would not consider the need to purchase the whole report as being “reasonably accessible”.
  • Information that is only available through inspection on the authority’s premises is not “reasonably accessible” (FOI, s.21(2)(b)), unless it is listed in the publication scheme as only being available through that route (so it is a very good idea for publication schemes to include public registers and archives).
  • The location of the requester may be significant in deciding whether something is reasonably accessible. If your office is in Kent, and the requester is in Newcastle, that might mean that a requirement to visit your office to see the documents is not making them reasonably accessible. However, the Information Commissioner does accept that there will be circumstances where copies can’t be made even for a requester a long way off (eg fragile documents held by a Record Office).
  • If a requester has a disability, that may also affect whether or not information is reasonably accessible. Authorities need to consider their duties under the Equalities Act 2010 to make reasonable adjustments. A requester with particular disabilities may not be able to visit an office a distance from their home.

Things that requesters need to know

  • If you think that your circumstances would affect whether or not information is reasonably accessible (eg you have a disability that would prevent you accessing information in the public domain, or you live a long way from an office where the information is made available) you should include this information in your request (you don’t have to, of course, but an authority can’t make adjustment for your circumstances if it doesn’t know about them).
  • If an authority is claiming that the information is reasonably accessible because it is in a publication scheme even though it is very expensive, consider whether the information is environmental information. The Environmental Information Regulations (EIR) require charges to be reasonable, and it is possible that a challenge under EIR would be more successful than a challenge under FOI.
  • If you think that the FOI Officer hasn’t given you enough advice to be able to find the specific information, point out to them that they are required to provide advice and assistance. Reference to the Ames decision may also help your cause.
  • If the information is published by the authority, but is only available at a significant cost, check that it is listed in their publication scheme at that cost.
  • If information is available from that or another public authority at a significant cost but it is not listed in their publication scheme, it may be worth challenging in some circumstances. The Tribunal in Davis suggested that it was sympathetic to the Health and Social Care Information Centre’s charge because it made available lots of other information and the charge reflected the work involved in producing it. But that may mean that a Tribunal would be less sympathetic in circumstances where the authority was charging a disproportionate amount for a publication and hadn’t made available as much as it could at no cost.

Essential case law

Recommended reading

FOI Man says…

March 12, 2013

An unpopular answer

Filed under: records management — FOIMan @ 2:15 pm

FOI Man argues that there’s an easy answer to improving information and records management. The problem is that nobody likes it.

Jimmy Savile appears to have got away with, well, not quite murder, but rather a lot of very serious crimes in his lifetime. This morning BBC Radio 4′s Today programme looked at the failure of police forces around the country to recognise what was going on, despite many of them receiving complaints during his lifetime. Drusilla Sharpling of Her Majesty’s Inspectorate of Constabulary (HMIC) stated that forces have differing standards for recording information on the police national database. The problem, she argued, was one of information management.

This is but the latest example illustrating how fundamental information management is to the provision of just about every service in the country. And also how until something goes wrong (and usually within a few weeks after something goes wrong), it’s perfectly acceptable to put it to the bottom of the pecking order. We see plenty of evidence of personal data breaches that receive the attention of the Information Commissioner, most of which come down to poor information management. Last year London Metropolitan University lost its “trusted” status in relation to international students, partly because it failed to keep attendance records up-to-date.

We’re all inclined to leave the filing on the backburner. It’s a chore to us. Even I tend to find lots of jobs that need doing to prevent me spending time on records management. Recently I ran a workshop and the most senior manager present complained that email and shared drives were a problem as they weren’t being managed. So I asked him if he was going to set up a programme to be monitored by his management team and encourage his staff to spend time filing and deleting documents. He shrugged and said they don’t have the resources for that. And we moved on. That’s what we always do. We move on.

As a result, things don’t improve. FOI requests get refused on cost grounds or take forever to answer. Data breaches continue to happen. Children get abused and the abusers get away with it because a police force somewhere doesn’t employ enough people to keep records up-to-date. (And no doubt those police forces are under political pressure to cut “back office staff” – but that’s a whole different blog post).

I first got involved with FOI because I saw it as the answer to my prayers. At the time I was stuck in a regularly flooding basement in a local authority managing to the best of my ability a file store – a big room with lots of boxing on shelves. Some of the records at some point had been put in a location under the town hall steps. When I went to see them, I had to wear a mask because of the mould spores on the old ledgers that had been allowed to become damp (actually, sodden). Records management wasn’t sexy, but worse than that, the council didn’t HAVE to do it. There were all sorts of legal requirements on the council, and those were the things that got prioritised. So a piece of legislation that introduced a Code of Practice for managing records was music to my ears. The Lord Chancellor, no less, was calling for improved records management. Colleagues would have to listen to me. Bosses would have to provide resources. Beyond the wellington boots they provided when the basement flooded.

Well, sort of. Here we are 12 years later. Lots of public authorities appointed records managers. But that was it. Unless everyone in the authority spends time managing the information they deal with, and the technology and other infrastructure is put in place, all you’ve really got is…lots more records managers in basements, usually now with lots of other responsibilities that mean they have no time to work on records management. There’s plenty of evidence that actual improvements have been fairly limited in many, probably most public authorities.

So what’s the answer? Well, firstly, we could all try to remember that managing the information and records we work with is part of the job, not something that will wait until a quiet moment that never comes. But if that fails? I’m beginning to wonder if more legislation is the answer. There is precedent.

In Scotland, an abuse scandal in children’s homes led to the Scottish Government introducing The Public Records (Scotland) Act 2011. Under this Act, public authorities are obliged to prepare and implement a records management plan. The plan itself has to be approved by the Keeper of the Records of Scotland. In England and Wales, The National Archives has stringent rules already that apply to central Government and also inspect “places of deposit” – local Record Offices that are authorised to keep national public records relating to their local area.

But by and large most public authorities are left to their own devices. They can adopt technology without worrying about management of the information that the technology creates. They can treat records management as a luxury to be given up in tough times. They can leave their staff to their own devices, however important it might be to have a record of their work. Maybe it is time to look at the way we prioritise records and information management at a national level. Because whatever we’re doing at the moment isn’t quite working.

With thanks to Pete Wadley of the National Records of Scotland for information about The Public Records (Scotland) Act 2011.

March 10, 2013

The Exemption Index: Section 14 – Vexatious requests

Filed under: Freedom of Information Act,The Exemption Index,Vexatious — FOIMan @ 2:52 pm
Tags: ,

In the first of a new series, FOI Man looks at section 14 of the Freedom of Information Act – covering vexatious requests – and what every FOI Officer – and every requester – needs to know about it.

Summary

If you’ve ever watched Monty Python and the Holy Grail, you’ll recall King Arthur’s encounter with the Black Knight. The knight challenges him to combat. They battle. Arthur chops his arm off and claiming victory, makes to leave. But the knight, in denial of all sense (yes, I know it’s a comedy, but bear with me on this), won’t accept defeat and insists that Arthur keep fighting. No matter how many limbs Arthur lops off, the knight is insistent that the conflict continue. Eventually Arthur walks off whilst the knight, now literally without a leg to stand on, continues to shout after him.

But when you’re providing a public service and legally obliged to respond to enquiries, you can’t just walk off. Or can you?

That’s what section 14 provides for. FOI Officers rarely deal with medieval knights, but we are familiar with that kind of bloody-minded (if not bloody-bodied) determination. There are people who refuse to take no for an answer. There are others who are more like an attention-seeking child repeatedly prodding its older sibling or a kitten jumping up and down on a weary old dog. The answers aren’t necessarily important – it’s about provoking a response.

More recently, it’s becoming clear that section 14 is FOI’s answer to gluttony. It can be used to refuse requests where one request threatens to eat the public authority out of house and home.

Information affected

Virtually anything. It’s the nature of the request itself that triggers this provision, not the information requested.

Things that FOI Officers need to know

  • “Vexatious” isn’t defined in the Act. So the case law and guidance that is available is essential to understanding how it can be used.
  • Vexatious requests have to be refused in writing. Allowing the requester to appeal the decision through internal review is a good idea given the controversial nature of these refusals.
  • When considering whether a request should be refused as being vexatious, the Information Commissioner’s 5 tests may help, but Justice Wikeley, who recently analysed section 14 in detail as part of an Upper Tribunal decision, suggests four things to consider: the burden, the motive, the value or serious purpose, and whether the request causes distress or harassment to staff.
    • The burden – consider the number of requests previously made; the breadth of the request (but consider asking them to narrow their request or refusing on cost grounds first); the pattern of requests (eg are several made within days of each other?); and the duration (has this been going on for some time, and does this suggest it will continue in the future?). Recent case law suggests that where requests can’t be refused on cost grounds (section 12 – for example if it would take a long time to read through and redact material), section 14 may be used. However, it is still unclear where the line can be drawn – the information in these cases ran to thousands of pages. The key, almost certainly, is going to be to demonstrate that the work involved is disproportionate (see paras 15 and 16) – and that will vary depending on the size and complexity of the organisation, and of course what the purpose of the request is.
    • Motive – you can’t be “purpose-blind” in considering this aspect of FOI. It will often be difficult to be sure what someone’s motive is. In many cases, where you do know – eg you know the requester is a journalist researching a story – it is likely to be a reason NOT to use section 14.
    • Value or serious purpose – obviously closely connected to considerations of motive. And equally difficult. It might be that a series of requests starts out as having an obvious purpose (eg finding out information relating to a legitimate complaint), but over time “drifts” into vexatiousness as the requester draws in more and more unconnected issues. FOI Officers should never consider using section 14 purely because they can’t see a serious purpose or value behind a request – only if there are other reasons to think a request is vexatious.
    • Causing harassment and distress to staff – if a request (or series of requests) appears to target an individual obsessively, is aggressive or uses what Justice Wikeley describes as “intemperate language”, it can be used as evidence that a request is vexatious. It is probably safest to be able to point to other reasons as well.
  • Case law increasingly supports a “holistic” interpretation. As Justice Wikeley put it (para 45), the danger is “not being able to see the vexatious wood for all the individual trees”. Basically, listen to your gut.
  • EIR requests – regulation 12(4)(b) – “manifestly unreasonable” – is broadly equivalent to FOI’s section 14 (para 30). Therefore much of what is said here will apply to that exception.
  • Repeated requests – for a long time, section 14(2) of FOI, covering repeated requests, has been talked about as being a separate provision. Justice Wikeley thinks it should be seen more as a subset of vexatious requests.

Things that requesters need to know

  • Vexatious sounds bad. Most people aren’t going to like being called vexatious. But don’t take it too personally if you receive a response citing section 14 – the flip side of recent case law is that requests might well be classed as vexatious even if you had no intention to annoy. It is fundamentally a tool to help public authorities manage the workload of FOI, just as section 12 and the fees regulations are.
  • Avoiding getting a request refused under section 14 – don’t get personal. Asking questions about an individual member of staff (eg “I want to know how much John Smith has claimed in expenses?”) is likely to get people wondering if you’re trying to harass Mr Smith, especially in the context of a long standing correspondence or dispute with that member of staff. If the FOI Officer asks you to narrow down your request, be cooperative, especially if they explain that it will take a long time to review and redact relevant material. If you ask about zombies, aliens and the supernatural, you’re just as likely to receive a refusal under section 14 as you are to receive a witty response – quite rightly as you’re wasting taxpayer’s money.
  • Challenging a decision – demonstrate that your request has a serious purpose; question how much work the authority is claiming is involved and whether it imposes a disproportionate burden (for example, a Government department is more likely to have the resources to review 1000 pages of information than, say, your local GP surgery); keep calm – otherwise you may just compound the impression of an obsessive person causing undue harassment.

Essential case law

Recommended reading

FOI Man says…

 

February 22, 2013

FOI and First Contact

Filed under: Barmy FOI requests — FOIMan @ 2:37 pm

FOI Man brings you a tale of alien first contact from Scotland…

Last year Leicester City Council revealed their plans for responding to a zombie attack, and now Glasgow City Council has shown its preparedness for alien first contact. The council was asked:

“As mankind continues to advance and head out into the stars we are undoubtedly going to attract the attention of whatever lifeforms are out there. I’m curious to know what provisions have been put in place for our inevitable encounter.”

Glasgow’s Head of Information Governance, Dr Kenneth Meechan, could very easily have responded by answering that the information was not held, or claimed that the request was vexatious. But no. As he put it to me, he is “a science fiction fan [so] it’s nice to get a rare chance to mix work and pleasure”. I’m not sure whether or not the requester will be reassured that the council does not view alien contact as likely within the next five years. Aliens may be pleased to learn though that the council can assure them “a warm and peaceful welcome.” Overall, Dr Meechan concluded that contact was unlikely as “[t]he council does not own or control any radio telescopes” and because Glasgow only covers 0.00003% of the planet’s surface, making it statistically unlikely that aliens would choose to land there.

Not surprisingly perhaps, the request and its creative response attracted wide media coverage in Scotland. The Scotsman and The Herald each raised an amused eyebrow, whilst the Scottish Sun showed a picture of Mr Spock raising one whilst reporting on “wacky council number crunchers.” Ah well, you can’t win ‘em all.

Last word goes to the Glasgow City Council spokesperson who told the Scottish Sun: “We like to go the extra mile to answer freedom of information requests — even if the truth isn’t out there.”

Thanks to Dr Meechan for sending me links to those articles, and for providing a bit of welcome FOI Friday fun.

February 18, 2013

Could Wikeley make FOI changes less likely?

Filed under: Amendments,Freedom of Information Act,Save FOI Campaign,Uncategorized,Vexatious — FOIMan @ 8:44 pm
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Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

  • reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
  • allowing public authorities to include consideration time in the assessment of this limit;
  • allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
  • charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

February 3, 2013

Is Scotland becoming less free with its information? A report on the FOI Scotland Conference 2013

Filed under: Freedom of Information Act — FOIMan @ 2:14 pm
Tags: ,

FOI Man sees two alternative futures for FOI at the FOI Scotland Conference.

Is Scotland becoming less free with its information? That was the question posed by the organisers of this year’s Freedom of Information Scotland conference, held in Edinburgh last week. And to be honest, I came away with the impression that if anything, Scotland could teach the rest of the UK a thing or two about freeing up its information. But I also came away with a sense of how fragile the right of access can be.

A bit of context first. Like the UK Government, the Scottish Government has just completed a post-legislative scrutiny of their FOI Act. And the week before last an FOI (Amendment) Bill was passed which made a small number of changes to the Act. Critics, like the Campaign for FOI in Scotland, have been scathing of the SNP administration’s lack of ambition. In particular, as in the UK as a whole, there is concern that FOI is not “following the taxpayer’s pound” as Margaret Hodge would put it, as more and more services are contracted out to organisations that do not face the same obligations as public bodies.

Nicola Sturgeon MSP, the Deputy First Minister, who leads on FOI in the Scottish Government, not unsurprisingly argued against the premise of the conference’s subtitle. Her argument is that the FOI (Scotland) Act is already progressive compared to its contemporaries. This Bill was never intended as root and branch reform of the Act, but merely to tidy up a few inconsistencies. She pointed out that FOI is only part of a wider agenda of improving transparency in Scotland, pointing to the Public Records (Scotland) Act 2011 (which introduces new requirements for records management in public bodies and those providing public services) and the Public Services Reform (Scotland) Act 2010 (which requires public bodies to publish details of expenditure on public relations amongst other things). She also promised to bring forward an order to extend FOI to more organisations by the summer recess this year, which would be the first time that such an order had been made in Scotland. In an apparent side-swipe at the UK’s post-legislative scrutiny (though she actually cited Ireland, which we’ll come to in due course), she remarked that other governments had used their post-legislative scrutiny processes to weaken FOI. Only Scotland had emerged with stronger legislation.

Carole Ewart of the Campaign for FOI in Scotland remained scathing of the Scottish Government, describing the Amendment Bill as “a wasted opportunity”. Judging by a number of comments made on Twitter, a number of Scots feel the same way. There is also a degree of cynicism over the promise to extend FOI, a promise made, and broken, many times before in the last decade by Governments of all hues.

FOI Man standing in Scottish Parliament chamber

FOI Man in the Scottish Parliament chamber, Edinburgh

One of the things I looked forward to most at this conference was the opportunity to meet the new Information Commissioner in Scotland, Rosemary Agnew. Scottish authorities who rubbed their hands with glee on hearing that her predecessor Kevin Dunion was leaving the post will be disappointed if they thought this would lead to a softening of the Scottish Commissioner’s stance on FOI. Rosemary appears to be embracing her new role with zeal. One of her first acts in the role was to persuade the Committee looking at the Amendment Bill that the exemption relating to correspondence with the monarch and their heirs should not be made absolute as this would damage openness. As she commented, this in itself now makes the Scottish Act more open than the UK one, amended in this way in 2010.

Rosemary explained that she sympathised with public authorities as before being appointed as Information Commissioner she had been the Chief Executive of one herself. But her antidote to the increasing burden of FOI is not to limit the right of access, but to improve business practices, which in turn will help organisations to work more effectively across the board. It isn’t one thing, she argued, that makes it easier to meet FOI obligations, but a combination of improved procedures, better records management (Rosemary was unusually enthused about the importance of records management for a senior official) and culture change. Senior officers need to “live the culture of openness”. And FOI Officers heard Rosemary extol their work and make clear that supporting them is key to doing FOI well. I won’t disagree with her.

The conference also heard from someone who had used FOI – eventually – to obtain justice. Rab Wilson, a man with a way with words, and a nurse, told of his 6 year battle to procure the release of reports on serious incidents by the health trust he worked for. It was only a decision notice from the Scottish Commissioner that eventually validated his concerns after years of stress for him and his family.

FOI in Scotland does not of course exist in a vacuum, and we heard about FOI changes in adjacent countries. Regular readers will be well aware of Dr Ben Worthy’s research into FOI implementation in the UK, and he was, as ever, eloquent on the subject. But the real eye-opener was Gavin Sheridan’s description of his attempts to use FOI in the Republic of Ireland. Since amendment in 2003, requesters in Ireland have to pay not only to make a request, but also for the cost of search and retrieval – his highest bill yet for which was 29,000 euros for a dataset, for internal reviews, and for appeals to the Information Commissioner. One request can end up costing many thousands of euros, putting FOI beyond the reach of most members of the public. Gavin set up thestory.ie in 2009 and his tale of using the Act to obtain information about Government departments was by turns both comic and Kafkaesque. His wry amusement at the series of obstacles put in requesters’ paths, including the need to submit requests in the old-fashioned way using envelopes and stamps, could not disguise his obvious and not unreasonable frustration with his country’s approach to something it is nowadays a struggle to call “freedom of information”. As our Government in the UK considers tampering with the regulations governing fees, we might well note his experience.

Unfortunately I can’t report on the break-out sessions at the conference other than the two I chaired, but feedback suggested that they had been lively affairs and mine certainly were. I’ll write at another time about my session on blogging FOI. In the other session I chaired, Iain Bourne of the UK Information Commissioner’s Office talked about the ICO’s new Code of Practice on Anonymisation, which I’ve written about here before.

My own conclusion, like many at the conference, is that Scotland remains progressive in its implementation of FOI, but campaigners and those who want to use it must remain vigilant. And from my own perspective, it underlined the need to do all we can to ensure that our UK FOI Act does not lose ground, for fear that it might become shackled like that of Ireland.

I’d like to thank Holyrood Magazine Conferences and the Office of the Scottish Information Commissioner, who jointly organised the conference, for inviting me to take part, and for their hospitality on the day. I thoroughly recommend next year’s conference on the basis of my experience in Edinburgh last week. It was a superb conference that left me buzzing with renewed enthusiasm and I’m sure other attendees felt the same. And it was a real pleasure to meet so many friendly and enthusiastic people keen to talk about FOI in a positive way.

January 26, 2013

Debate on future of FOI

Filed under: Amendments,Freedom of Information Act,Save FOI Campaign — FOIMan @ 3:25 pm
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FOI Man comments on this week’s Westminster Hall debate on the future of FOI

This week there was a debate on the future of FOI following the post-legislative scrutiny. I have to admit that until it was already upon us, I had been unaware that it was happening. But I clearly wasn’t alone. Four MPs turned up, one of whom was Sir Alan Beith, who chaired the post-legislative scrutiny process, and another of which was the Minister responding for the Government, Helen Grant. So not really a debate so much as a friendly chat over coffee. Hopefully this is not a reflection of the worth MPs attach to FOI. (After all, the FOI debate was being run against a debate on another hot topic on everyone’s minds, reducing the voting age to 16…)

The Minister reiterated Government plans, set out in December in its response to the post-legislative scrutiny, to look at including more activities within the “acceptable limit” that can be used to refuse FOI requests on grounds of cost. She also referred to possible plans to limit “industrial” scale request making. Sir Alan was rightly critical of these proposals. Others have written about the potential impact of these changes, and you can read what the Save FOI Campaign thinks about it on their website.

We’re in the period of the phony war at the moment. The Government is preparing proposals, but we don’t yet know what the detail will be. Any firm proposal will need to be consulted upon before being enacted through amendments to regulations, so we’re a way off any change to the limits on FOI requests yet. This probably explains the low attendance at the Westminster Hall debate, but there’s still some fighting to do to save FOI from potentially damaging reform.

 

January 16, 2013

Opening up Open Data

Filed under: Open Data — FOIMan @ 2:08 pm
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FOI Man reports on a visit to meet Open Data experts at Southampton University.

Chris Gutteridge is a techie – in the best possible sense of the word. When I first arrive, he’s eager to show me “the cool stuff”. And it really is cool.

Despite my pseudonym, I don’t have superpowers, yet Chris is able to fly me over and into the university campus, bringing us to the ground with a bump outside his building. Of course, I’m talking about a visual representation of the campus achieved through the neat trick of linking building data collected from the university estates department to Google Earth. Chris is experimenting with making the maps 3D by collecting (and in some cases creating) data on the height of buildings on campus.

And the cool stuff like this is how he sells the open data initiative to colleagues across the university. Central and local government have already made great strides in the open data arena, but Southampton are pioneers – and indeed, award winners – in the higher education sector. After all, it is the home of the Government’s open data tsars (can you have two?) Professors Nigel Shadbolt and Tim Berners-Lee (also famous these days for sitting behind a desk entertainingly at the Olympic opening ceremony – no mean feat). But even with this top level support, it can be tricky to get busy departments to cooperate, as many FOI Officers will sympathise with.

Chris starts listing the objections colleagues raised when asked to provide datasets to make available for re-use through their Open Data Service. He looks puzzled when I start laughing, but some of you will recognise “what about data protection?”, “what if terrorists exploit it?”, and “isn’t it commercially sensitive?”. And the question that often lies behind these objections in reality, “what if someone realises our data is unreliable?” (or “shit” as Chris rather more prosaically puts it). Chris has blogged a whole list of these concerns and they all sound rather familiar.

But by demonstrating that once the data has been collected centrally it can be made useful to the departments that originally provided it, Chris and his team have started winning them over. One of their biggest supporters is the Catering department, who already maintained spreadsheets with details such as the items available in the cafes, bars and restaurants across campus and their unit cost. With a little adjustment, the spreadsheets were made into reusable data. Now the Catering department no longer have to manually update their web pages as the availability and cost of food and drinks in individual outlets is now pumped live from regularly refreshed open data straight to the pages. They’re now doing similarly useful things with events calendar data.

Chris thinks this repurposing of the open data is key to making open data a success. His mantra, repeated to me several times, is that the main return on investment in open data for the university is the availability of “a huge pile of data that can be used internally without fear”. And if outside users (or indeed their own students) find the data useful to create new apps, then all the better.

Chris gives me some tips for anyone wanting to establish an open data repository. Given that recent FOI amendments mean that this will soon be a requirement, that’s pretty much all of us in the public sector.

Avoid controversy. You want to get buy-in from colleagues, so don’t startle the horses. Pick simple but useful datasets that nobody will challenge. At Southampton they started out with building data. It’s data that isn’t sensitive – people can see most of it by walking around the campus – but as we saw at the start of this piece it can be put to very effective use by developers.

Think carefully about what datasets you think should exist. Then speak to the relevant departments and see if they do have those datasets in a useful format. Chris suggests that often suppliers can be very helpful, and can give advice on how datasets can be extracted from their systems. They may even be prepared to look at how their systems are specified so that datasets can be more easily exported in future.

Encourage colleagues to give you their data even if it isn’t complete. It is better to have some data than no data at all in most circumstances.

Be ready to challenge concerns. Some colleagues will be concerned about giving data away for free, rather than making money from it. But as Chris points out, “if a Chinese takeaway gave away its food, it would soon go out of business. But if a Chinese takeaway didn’t give away its menus, it would go bust even faster.”

Look at what you’re already making available, and how. Chris demonstrates that my university is already making available data in a reusable format because we have an online repository called EPrints. He tells me that if you have an RSS feed on your website, you are “already more or less doing open data”.

Make information available in a reusable format. Open data enthusiasts grimace at the mention of portable document format (pdf). At the very least, try to make data available in a spreadsheet format.

Adopt an open licence. Open data is about more than publishing information in a reusable format. It is also about licensing. It’s really only open data if you state on your website/open data repository that data can be reused without charge. The best way to do this is to adopt the Open Government Licence.

Keep datasets up-to-date. One of the things that public bodies will be expected to do once the FOI amendments on datasets come into force is keep published datasets up-to-date. I ask Chris how Southampton maintain their datasets. It depends, of course, on where it comes from.

  • Hearts will sink to be told that a lot are maintained manually by his team – not many of us will have resource to spare. So to make this work we need to ensure that it’s as easy as possible to get things corrected. Chris suggests encouraging feedback from users of the data so that they can flag up when data needs refreshing. At Southampton they also use student volunteers to maintain the datasets, which might be something to consider for universities in particular.
  • Some datasets automatically update. Depending on your set up, some will be fed live data from systems maintained by the supplying department. Some suppliers who provide systems across the public sector are already thinking about how to build open data publication functionality into their databases.

Chris is keen to encourage the growth of an information ecology, with others across higher education publishing more and more open data. He encourages universities to consider creating ‘profile’ documents on their websites, describing where their key datasets can be found and in which formats. This will help with auto-discovery by the new open data hub for higher education, which will eventually provide potential users of datasets with a single portal to locate useful data.

So the higher education sector isn’t moving into this new era of reusable open data entirely unprepared. And if you’re thinking of taking your first steps into this brave new world, hopefully you, like me, feel slightly less daunted thanks to Chris’s enthusiasm.

I’d like to thank Chris, Ash and Patrick for letting me disturb them for a whole afternoon last Friday. Any errors here reflect my ignorance and not their skill or willingness to share!

January 8, 2013

January – the FOI Officer’s Hangover

Filed under: FOI Officer,Freedom of Information Act — FOIMan @ 10:19 pm
Tags: ,

FOI Man makes a plea for patience from those who made requests before Christmas.

January – it’s a hard month for all of us, isn’t it? Most of us have had at least a few days off over Christmas and new year, so getting into the swing of things is always tricky. And many of us have been lucky enough to have almost a fortnight away from the office. And then we come back to the darkest days, a pile of work and no holiday in sight.

SOAS, my own organisation, shuts down completely for the whole of Christmas week every year. Even if I wanted to I couldn’t be in the office to deal with FOI requests and other matters of a pressing nature. Some other FOI Officers will be in the same boat. And even when the office was open before Christmas, the availability of colleagues to answer queries and discuss how to answer requests was, as ever, in long slow decline during December. So even the welcome discovery that we have an unexpected extra day  is little consolation to the returning FOI Officer facing a rush of FOI deadlines, having lost the meat of the time allowed – between one and two weeks – to work on the requests.

Generally speaking, I’d advise any requester to avoid making requests during December if their need for a response is urgent. But if you did feel the need to submit an FOI request during December, please do retain a little festive goodwill and be patient – it may well take a little longer for some authorities to respond at this time of year, despite their best efforts.

I’ll be writing a regular column for PDP’s Freedom of Information Journal this year, and if you want to know more about how 20 working day deadlines work, my first article will be on that very subject. Watch this space!

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