FOIMan reflects on ten years of FOI in his latest article for PDP’s Freedom of Information Journal. Happy new year. Like many others I return to work today after an extended Christmas break, refreshed and ready for the year ahead (at least in theory). Ten
FOIMan reviews the Information Commissioner’s latest website revamp via a grumble about gov.uk. The way people prefer to find information is subjective. On my Records Management training courses I illustrate this by giving delegates a pack of headings on strips of paper and asking them
FOIMan questions Cabinet Minister Francis Maude’s suggestion that FOI requests will be made redundant by the government’s transparency and open data initiatives. Francis Maude made a speech earlier today about government transparency and open data. It caught my attention partly because of a section in which
FOIMan’s early Christmas present to you. A ready reference chart of FOI deadlines over the festive season. With so many Bank Holidays over the Christmas and new year period, it is easy to lose track of when responses to requests are due. Here’s my early
FOIMan reflects on how his boring records management work has twice found its way into the national press and considers whether there are lessons for others who manage their organisation’s information.
The Telegraph reported earlier this week that MPs’ expenses claims prior to 2010 can no longer be investigated as they have all been destroyed. Defending its actions, the House of Commons authorities explained that they had been disposed of in line with a policy called an Authorised Records Disposal Practice (ARDP), and that to retain them longer would have breached the Data Protection Act (DPA).
The story attracted my attention because…I drafted the ARDP in 2003. I don’t recall why we gave it such a rubbish name, but I do remember why MPs’ expenses claims, receipts and other financial records were to be retained for only 3 years. It was because the House of Commons authorities went out of their way to obtain permission to retain them for this period rather than the usual 6 years. Three years was explicitly chosen because they wanted to limit both the scale of information that might potentially have to be searched, and the risk of “smoking guns”.
As it turned out, three years wasn’t enough to avoid the latter, at least not entirely.
Is the Commons’ spokesperson’s statement that to retain the records longer would have breached the DPA true? The DPA requires organisations using personal data to comply with 8 principles. One of those principles requires personal information not to be kept for any longer than necessary. The Act doesn’t specify how long such records should be kept – in practice it depends on a range of things from other legal requirements to business need. It does require, of course, that organisations develop clear policies on how long personal information will be retained and put in place procedures to implement those policies consistently. To this extent, the House of Commons was following good practice in adopting the ARDP, and indeed in disposing of information in line with it.
This doesn’t entirely justify the Commons statement though. As I stated above, it was their deliberate decision to retain financial information for a shorter period than most organisations, albeit with relevant authority. They could have decided to keep records for 6 years. At any point – especially once the public interest in MPs’ expenses was aroused – they could have amended the policy. Given the historical significance of these records, it is even arguable that they should have been retained permanently. An exemption within the DPA would have provided legitimacy for this action.
So whilst the argument made by the Commons authorities was factually correct at least in part, it was perhaps a little…disingenuous.
This isn’t the first time that my records management work has aroused controversy. In preparation for FOI in late 2004, the Greater London Authority (GLA) held a number of “Records Management Days”. Staff were encouraged to dress down and spend part or all of their working day throwing away files that were no longer required. The aim was to reduce the amount of space taken up by storage for records (City Hall never having been designed with physical records storage in mind), and to reduce the volume of information that would need to be searched through when we started to have to answer FOI requests. (This is arguably of benefit to potential requesters as well. The more information that remains to be searched through, the more likely that a public authority will be able to claim that complying with the request will exceed the “appropriate” or cost limit.)
Records management is seen as an activity that busy people can put off. Put that together with the “just in case” mentality and the challenge for records managers like myself is not generally to persuade colleagues to keep information, but to get them to throw it away. FOI presented a fabulous opportunity to make this happen. If I milked the “smoking gun” message it was a means to an end – though perhaps it suited others for different reasons.
The GLA’s records management project, of which this activity was a part, was approved by both the Mayor and the London Assembly. So it was with some surprise that I learnt that London Assembly Members were asking questions about what were now termed “shredding days” in early 2005. And with even more surprise to find them reported in the Sunday Times in March 2005:
“KEN LIVINGSTONE, the London mayor, has admitted that his office had a “shredding week” to destroy documents ahead of new disclosure rules under the Freedom of Information Act.”
Back in 2005, and again this week when reading about my ARDP’s role in the latest MPs’ expenses story, my initial reaction was defensive. As a records manager I was doing my job. It isn’t possible for organisations to keep everything – just imagine what your own house (or even computer, though that’s perhaps less obvious at first sight) would look like if you never threw anything away. If you must dispose of records, good governance requires that it be done in line with an agreed policy grounded in established best practice. For many years that is the argument that records managers have expounded and stood by. I’m sure that like me, they have seen themselves as slightly removed from the fray, an almost neutral observer. So news articles suggesting that our work is “political” in some sense provoke an indignant response. That’s exactly what our work is there to demonstrate – that the management of information is simply a process. Records are destroyed according to our rules not to the whim of a politician or a nervous official.
But is that true? When I reflect on this latest story, and once again on my earlier brush with politics, I begin to realise that what I thought of as apolitical policies were never really anything of the sort. All policies – and retention policies are no different – have to go through some sort of approval process. They have to take on board the needs of the organisation – political as much as financial and practical. In drafting retention policies for both the Houses of Parliament and the GLA (and for that matter, any of my other employers) I documented established and desired practice. If the Commons’ authorities wanted to keep information for 3 rather than 6 years, then that was what was written into my policy. I don’t remember if I challenged it at the time, but even if I had, it is unlikely that my view would have prevailed. It is most likely that at the time I accepted the view of those authorities unquestioningly. It didn’t seem unreasonable at the time, whatever hindsight suggests.
So those managing their employer’s information should remember that whilst it may be tempting to see themselves as objective rule-makers, they are probably nothing of the sort. In truth, records managers are as much a part of the culture of their organisation as anyone else, and it is perhaps more dangerous to continue to deceive ourselves to the contrary.
FOIMan reviews the state of FOI in the UK at the end of the last party conference season before the 2015 General Election.
It seems like only yesterday that I coined the hashtag #saveFOI when, provoked by the launch of the government’s post-legislative scrutiny, it seemed that everybody and their uncle wanted to pile in with their FOI horror stories. And a few months later I was – largely – relieved to find that despite the naysayers, the Justice Select Committee had recommended few changes to the Act. Indeed they had focused on its achievement as “a significant enhancement of our democracy”.
The attacks, of course, have not gone away. Whether it be dragons or criminals attempting to give bananas the slip, some public authorities have been keen to bring FOI into disrepute. Their hope is that these stories will make it politically acceptable for the government to weaken our right to know.
And these are dangerous times for constitutional rights, of which I count FOI as one. We’ve seen that the Conservative Party is keen to dismantle the current human rights infrastructure, apparently because the government hasn’t got its way over one or two decisions made by the European Court of Human Rights. If human rights aren’t safe, it’s a fair question to ask if other rights – less complicated to remove or weaken – will also come under renewed attack. And from whom?
The most pressing threat is the possibility that the government might – as it proposed to do in its response to the post-legislative scrutiny – amend the FOI fees regulations to make it easier to refuse requests. However, a recent interview with the Minister for FOI, Liberal Democrat Simon Hughes, appears to suggest that the threat has been stayed somewhat. Mr Hughes indicated that a consultation on this is likely before the 2015 election, but actual changes were unlikely until after then. It appeared from the interview that the two parties in government were failing even to agree on the content of the consultation. So even that is in doubt.
Another significant threat is the failure to properly fund the Information Commissioner’s Office. As I’ve previously highlighted, Christopher Graham himself has indicated that FOI enforcement is at risk without a new settlement. The ideal solution would be to find a way to independently fund the Commissioner’s work, rather than him having to go cap in hand to a government department that he often has to rule against.
It is entirely possible that a new government next May could find other ways to undermine FOI. As the last party conference season before the general election has come to its conclusion, what can we say about how safe – or otherwise – our right to know will be next year?
First of all, it’s not unreasonable to be sceptical about any of the parties that are likely to form a government next year. At various points they have all exhibited ambiguous attitudes to the legislation, especially when in government. But I do think we can draw some conclusions. Let’s take each of the main parties in turn.
The Labour Party, of course, introduced the Freedom of Information Act whilst in power. But famously the Prime Minister of the time has expressed his regret, believing it (with the ban on fox hunting) to be one of his two worst decisions. It’s been repeated enough now for us not to choke on our tea with the irony. However, the current Shadow Justice Secretary, Sadiq Khan, has made several positive noises about FOI, including vowing that it will be extended to private companies that provide public services – a promise repeated during the Labour Party Conference in September. This doesn’t mean that a Labour government with a healthy majority won’t lose its enthusiasm for the right to know once in power, but at least Mr Khan appears to be proud of his party’s part in the story of FOI rather than considering himself to be a nincompoop.
Simon Hughes’ conference speech this week claimed that the Liberal Democrats were trying to extend FOI now. His speech, as well as the interview with Martin Rosenbaum mentioned above, hints that the junior party in the current coalition has protected FOI from their partners in government. In this context it is worth noting that many observers were surprised at the relatively positive conclusion to the post-legislative scrutiny. It seems plausible that this was as a result of the canny chairmanship of Sir Alan Beith, a Liberal Democrat. My sense is that broadly speaking FOI is safest with Liberal Democrat involvement in government.
What about the Conservatives? They don’t appear to have said much at their conference on the subject. But in the past their leader has expressed his irritation with FOIs “furring up the arteries” of government. His idea of “real FOI” is government deciding what you should be allowed to see. That phrase was echoed last week when the Conservatives talked about “real human rights”. Not all Conservatives are enemies of FOI though. Eric Pickles has criticised local authorities who moan about their FOI obligations. Overall though – and looking back at the evidence given to the post-legislative scrutiny in 2012, and the MPs who appeared most skeptical – I don’t sense much enthusiasm for FOI in the Conservative Party (aside from when they were out of power when they used it enthusiastically, of course).
So there we are. It would appear that FOI would be safest with Labour or the Liberal Democrats (and most safe with both). Of course, we’ll know more when party manifestos are issued early next year. Maybe the Conservatives will prove me wrong by offering to protect and extend FOI in the next Parliament.
FOIMan tells civil servants that FOI practitioners deserve credit for FOI’s success over the last ten years.
Earlier today I was pleased to speak at an event organised by the UK National Archives in Kew, south-west London, for central government information managers. The topic of my talk was “Ten years of FOI: what makes FOI effective?”.
The pedantic amongst you may point out that FOI is actually almost 14 years old, but of course the 10 years refers to the commencement date of the right of access to information which was 1 January 2005.
I decided not to give a potted history of FOI (partly because I knew that the following speakers, Dr Ben Worthy and Maurice Frankel, would do a much better job), but instead chose a number of anecdotes from my time as an FOI Officer. Some of them I’ve referred to here before. They included requests for information about the Olympics which caused angst for LOCOG and the IOC; a surprising request for correspondence about pandas; and perhaps the most surreal experience of my career – sitting in a room in Buckingham Palace discussing an FOI request whilst bear-skinned guards marched past performing popular tunes for crowds of tourists.
A key theme of my address was the difficulties that FOI officers have encountered over the last decade – and how they have successfully risen to them. The ever increasing volume of requests has been well documented, but those coordinating FOI activities in public bodies have also had to champion the legislation’s requirements often in the face of opposition from colleagues and those in high places. One audience member was keen to point out that senior officials’ views are often helpful in identifying sensitive information, and of course this is true. But nonetheless it often falls to relatively junior FOI officers to explain that it will not be possible to deny access to that material. And the reaction to unwanted advice has on occasions been to shoot the messenger.
But despite these difficulties, FOI has changed the culture of government departments and public bodies. Although we hear many examples of responses being delayed and documents being withheld unreasonably, vast amounts of information have reached daylight. In some cases surprisingly so, especially given attitudes back in late 2004. There are lots of reasons that can be put forward for this, but I believe that a really significant one has been the growing professionalism, experience and knowledge of those who are answering the requests. They display integrity in their management of FOI requirements. They haven’t just accepted the status quo; they’ve helped push the transparency agenda, even when it made their jobs difficult. Even the relentless rise of requests is a positive sign – people recognise that FOI can and does work, otherwise they wouldn’t bother. FOI officers have helped FOI to make a difference.
They have made FOI effective.
Thanks to the National Archives team for organising a really interesting and successful event, and for asking me to speak.
FOIMan reflects on going from student to master in a very short period.
As regular readers will know, this year has seen a big change in my career. Up until last Christmas I was an FOI Officer who did the odd bit of training in his spare time. In January I left that all behind to become a full-time freelance trainer and consultant.
One of the things that I was most nervous of as I looked down my list of bookings from Act Now Training at the start of the year (who still provide me with the vast majority of my work, and are a pleasure to work with) was delivering Act Now’s course for the British Computing Society’s formal qualification in Data Protection earlier in the summer. It was only a couple of years ago that I undertook the course as a student and it was a challenge then. I’ve written a piece for Act Now Training’s blog on making the transition from student to tutor.
As it happened I ended up delivering both the Data Protection and Freedom of Information courses, and in the end I thoroughly enjoyed tutoring it. I’m still learning – about training, as well as about my supposed areas of expertise – but that’s part of the fun, and working with students to get to grips with some of the more complicated and controversial aspects of information rights has certainly helped me. I’ll find out if it helped them when the exam results come out next month! But the feedback at the end of each course was thankfully really positive and most people seemed to enjoy it, even if they were nervous about the exam.
Next month I get back from my holidays, stepping out of the resort swimming pool and plunging straight back into a new set of BCS courses – this time in Belfast. So Northern Ireland readers contemplating a qualification in FOI or DP, please do consider joining me! If you’re not in Northern Ireland or can’t afford it this time, do take a look at Act Now Training’s course schedule and it would be great to see you on a future course. I’m also running a BCS course in-house for one of their clients, so if there are enough of you interested in your organisation, you may want to explore that.
I hope you’ll excuse the odd post like this one updating you on progress with my new business and – of course – plugging some of my courses. After all, they help keep me fed and watered so that I can provide other useful stuff here on the blog. And if you know anyone who is looking for training or help with data protection, freedom of information or records management, please do point them in my direction!
If you’re being sued, you will no doubt want to seek legal advice. Even if you’re not, but you want to make sure your activities are compliant with legal requirements, you would want to seek such advice.
There is an established convention that such advice is confidential, with good reason. If you ask for advice, and the advice comes back saying that your case is weak, you don’t want those who might litigate against you to get access to it. It’s up to their lawyers to make the case against you. If you thought that adverse advice might be disclosed, you probably wouldn’t ask for it in the first place, as it could leave you in a weaker position.
That’s why there is an exemption to cover this. But perhaps surprisingly, it is subject to a public interest test. So in some cases, it might be disclosed.
Advice (and requests for advice) from solicitors, barristers or legal executives.
Things that FOI Officers need to know
- there are 2 types of information covered by legal professional privilege – litigation advice and legal advice
- be clear who the client is, and who is giving the legal advice
- keep it to yourselves – if the advice is shared beyond those it is given to, there is a risk that it could be said that the advice is no longer confidential (and therefore no longer protected by privilege)
- information that already existed before the advice was sought (to give an FOI-world example – a document that has been requested under FOI that you have sent to an in-house lawyer for their opinion on whether an exemption might apply) will not be protected by legal professional privilege, but if the information (perhaps in the form of an attachment or enclosure) has been prepared specifically to support the legal advice then it would attract protection.
- if it is legal advice that has been kept confidential there is a very good chance that it will be exempt – whilst there is a public interest test, both the Commissioner and Tribunals agree that there is a substantial public interest in maintaining legal professional privilege
- That said – there are factors that might weigh in favour of disclosure – see below.
Things that requesters need to know
- whilst it is recognised that there is a substantial public interest in maintaining privilege, the very fact that s42 is qualified means that in some circumstances legal advice will be disclosed
- as always, timing is a factor – if the risk of litigation has lessened, then there will be less of a public interest in maintaining the exemption
- if the advice is not on an issue affecting individuals, it has been argued that the public interest in withholding it will be lessened
- if the substance of the advice has previously been disclosed in an unrestricted manner, it may be that firstly legal professional privilege may not apply; but that even if it did, the public interest in withholding it is reduced.
Essential case law
- Bellamy v Information Commissioner & Secretary of State for Trade & Industry (EA/2005/0023)
- Mersey Tunnel Users Association v Information Commissioner & Merseytravel (EA/2007/0052)
- Information Commissioner’s guidance on The exemption for legal professional privilege (section 42), v.1.2, November 2012
- J. Wadham, K. Harris and G. Peretz (2011), Blackstone’s Guide to The Freedom of Information Act 2000, 4th ed., OUP