Archive for Comment

Openness by Design: less fluff please

FOIMan comments on the ICO’s new draft FOI strategy ‘Openness by Design’.

A few weeks ago the ICO published its draft strategy for FOI and access to information over the next three years. It is still open for consultation until 8 March so if you have a view on the strategy, make sure you submit a response.

I’ve been reading it with a view to doing the same, but I thought I’d make some initial comments here.

The strategy focuses on five priorities:

  • Work in partnership to improve standards of openness, transparency and participation among public authorities in a digital age.
  • Provide excellent customer service to members of the public and public authorities and lead by example in fulfilling our statutory functions.
  • Raise awareness of access to information rights and make it even easier for the public to exercise their rights.
  • Promote the reform of access to information legislation so it remains fit for purpose.
  • Develop and sustain our international collaboration.

It’s hard to disagree with these statements of intent but that’s because they’re pretty bland – with a few tweaks they could have been copied and pasted from pretty much any corporate strategy document (the Scottish Commissioner’s strategic plan for 2016-2020 lists some very similar priorities, but they are worded more specifically). It would be good to see something more meaningful being promised. There are certainly opportunities to do more on FOI so it is not that there is nothing to say.

The more detailed exploration of these strategic goals is more enlightening. There are some hints of changes in approach (such as the collection of ‘systematic feedback’ from applicants and authorities). Strategic priorities are listed. The most striking of these are plans to develop a self-assessment toolkit; assessing the feasibility of transparency impact assessments along the same lines as Data Protection Impact Assessments; promoting digital means to enhance transparency; and building the case for changes to FOI (see my last post for more on that).

Much of this is laudable in principle but is a bit, well, er…fluffy. Do we really need the ICO to develop a ‘service charter’ to improve matters? If money is tight on the FOI side why is so much attention given to international relationships (I appreciate I’m starting to sound like the ERG here, but it’s a fair question)? Given the volume of requests that many authorities are struggling with, should the ICO really be devoting more of its scarce resources to increasing awareness amongst the public of FOI (it is part of the Commissioner’s statutory role to do that, but is it a priority over other things at present?)?

Come to that, why only ‘assess the feasibility’ of impact assessments? The Commissioner has been talking about them for almost a year so shouldn’t they have assessed the concept already? The few concrete ideas mentioned in the strategy seem to involve adding extra red tape to the FOI and openness process – whether it be impact assessments or self-assessment toolkits.

There’s lots of talk of ‘working in partnership’ with stakeholders, ‘using feedback’ and ‘develop engagement channels’. But aren’t the ICO already doing this? Some of the priorities outlined are so vague and amorphous that it is hard to know what they really mean.

One of the things that struck me when I was researching The Freedom of Information Officer’s Handbook was how little support practitioners get in doing their jobs. The ICO rightly points out that FOI’s benefits are not always recognised by public authorities, and that too much energy is spent on complaining about its cost. But my concern is that this strategy in its present form is not going to help win practitioners and their colleagues over, nor help them to improve their performance.

And there are specific and measurable things that the ICO could do to help practitioners and foster a more positive attitude to openness.

For a start, look at the Scottish Commissioner’s Office. I’m sure they’re not perfect, and they don’t have as wide a remit, nor is their constituency as large. However, with the limited resources they have they do a lot. The UK ICO could do worse than to look at the things they do:

  • collect and publish FOI stats– at the very least I’d like to see some solid commitments to enforcing the new code of practice requirements on authorities to publish these (the Commissioner talked about looking at the publication of statistics in the same speech a year ago in which she discussed impact assessments, so shouldn’t they have some meaty ideas by now?)
  • publish more guidance on the practicalities of FOI compliance (there is a mention of this in the strategy to be fair to the ICO)
  • highlight the learning from recent decisions in accessible ways, such as the Scottish ICO’s weekly round-ups and associated tweets
  • be seen to take on even the most powerful public authorities if they are not cooperating. I don’t need to bang on about certain government departments as plenty of others better placed than me to comment (as here and here) have done that. I understand that sometimes there may be more effective means than formal action to move things on, but it would be good if this strategy gave some indication of a new approach and what the ICO is prepared to do in the face of intransigence.

In short, practitioners need more concise and usable guidance; they need practical assistance; they need to be able to compare their performance to others; they need to know that if they tell their colleagues that they should comply, that they won’t look silly when government departments are let off the hook.

The ICO claim that one of their values is to be ambitious. I think they should put more emphasis on being ‘service focussed’ and in particular provide some more quality support for practitioners. Without educated and empowered practitioners, everything else in FOI falls apart. At the same time, where an authority is not playing ball, there needs to be less partnership and more confrontation. Get the basics right and everything else will follow.

The above comments may be unfair criticism of what is intended to be a high level declaration of intent. However, whether it be here or elsewhere, the ICO need to demonstrate that they are going to promote and enforce FOI compliance in a more practical and active way.

Extend FOI says Information Commissioner

FOIMan reports on a new report from the Information Commissioner calling for FOI to be extended to cover a wider range of bodies.

Two weeks ago the Information Commissioner’s Office (ICO) launched a consultation on its access to information strategy, Openness by Design. One of the five priorities outlined in the strategy was to:

Promote the reform of access to information legislation so it remains fit for purpose.

Wasting no time, the ICO have laid a report before Parliament called ‘Outsourcing Oversight: the case for reforming access to information law’. The report highlights examples of access to information laws – primarily FOI and EIR – failing to facilitate scrutiny of public service provision, from information about reinstatement works following the London Olympics to fire safety inspections of hospitals and other public facilities. The report uses case studies like these, together with polling data and commissioned research to support its conclusions.

The report recommends that:

  • a Select Committee inquiry into the issues raised (to which one is tempted to echo the infamous Brenda’s reaction to hearing that the 2017 general election had been called – ‘what, another one?’)
  • the government use its s.5 powers to use secondary legislation to make contractors subject to FOI where they are carrying out public functions; it proposes criteria for deciding whether this should happen
  • a greater number of organisations carrying out public functions are made subject to FOI via the same route, and that this should happen more frequently; the report specifically draws attention to housing associations, Local Safeguarding Children’s Boards, Electoral Registration Officers and Returning Officers
  • EIR should be amended to allow its provisions to be extended to contractors in the same way as FOI
  • FOI and EIR should be amended to indicate what information regarding a public sector contract is held for FOI/EIR purposes
  • a legal requirement to regularly report on the legislation’s coverage should be introduced
  • the government should conduct a review of proactive publication requirements in relation to public sector contracts including publication scheme provisions.

All of these recommendations are, of course, to be welcomed by anyone who supports greater transparency of public institutions. The report, and particularly the supporting research, will no doubt keep debate on this subject alive. The rub will be whether any of this will actually happen at a time when government has a few other things on its collective mind (and will do for some considerable time to come).

Brexit amendment to FOIA

FOIMan highlights a new amendment to FOIA resulting from the UK’s planned departure from the European Union.

It’s all getting real isn’t it? Aside from all the shenanigans in the Conservative Party this week, we’re seeing more and more of the practical application of Brexit from government. And the Freedom of Information Act (FOIA) isn’t immune from this.

Under the European Union Withdrawal Act 2018, ministers can make amendments to legislation to ensure that it is compatible with the terms of Brexit using secondary legislation. Yesterday the government outlined changes that would be made using this mechanism to the Data Protection Act 2018 (and through that, the application of GDPR in the UK) if the UK leaves the EU with no deal. (The Information Commissioner has also issued guidance on how no deal will affect data protection, especially when it comes to international transfers of personal data.)

In truth, FOIA isn’t massively affected by Brexit. But it has been necessary for the government to lay regulations making one very specific amendment. Section 44 of FOIA provides an absolute exemption from the duty to provide information or confirm its existence in circumstances where other laws prevent disclosure. It avoids a conflict between FOIA and other laws. Specifically, s.44(1)(b) of FOIA specifies that information will be exempt from disclosure if it:

is incompatible with any EU obligation

Yesterday the Cabinet Office laid regulations before Parliament which simply replace the reference to ‘any EU obligation’ with ‘any retained EU obligation’.

And there we are – FOIA is ready for Brexit when (or if) it comes.

 


The Freedom of Information Officer's Handbook, Facet PublishingA reference guide to the FOIA exemptions is provided in the Freedom of Information Officer’s Handbook by Paul Gibbons, which will be published in January 2019. Readers and subscribers to this blog can pre-order copies direct from the publisher with a 30% discount (so it will only cost you £45.45) by emailing info(Replace this parenthesis with the @ sign)facetpublishing.co.uk and quoting the code FOIBLOG30 (do not supply payment card or bank account details by email). The publisher’s distributor will then contact you to arrange payment and discuss despatch instructions.

Caught in limbo

FOIMan finds that the absence of a Northern Ireland government is having unforeseen consequences for FOI applicants.

Stormont

Stormont, home of the Northern Ireland Assembly © Paul Gibbons 2018

There are no doubt times when many of us think we’d be better off without politicians – you could be forgiven if now was one of those times. We should be careful what we wish for.

In Northern Ireland, there have been no ministers in government since the late Martin McGuinness resigned as Deputy First Minister in January of last year. Most people would probably assume that this doesn’t have a significant effect on the day-to-day running of government departments whether they be in Westminster or Belfast. Civil servants can keep things running. But perhaps surprisingly, many quite crucial but low level decisions cannot be taken without at least the signature of a minister. For example, on visits to Belfast to deliver training in the last year, I’ve heard taxi drivers grumble about delays to road improvements simply because there is no minister to give the nod to proposed schemes. There will be lots of quite simple matters that most of us take for granted that are not happening in Northern Ireland simply because there’s no one to approve them. And FOI administration is amongst the areas to be hit.

One example of this is when someone requests access to a record that has been transferred to the Public Record Office of Northern Ireland (PRONI). If exemptions apply to the information concerned, according to s.66(2) of FOIA, it is up to the relevant Northern Ireland minister to decide who should be consulted in the department that transferred the records (as in, which other minister). Since there is no minister to decide (or indeed to consult) there is a problem. In a batch of decisions issued last month, the Information Commissioner wrestled with this conundrum and concluded that whilst the Northern Ireland department that is responsible for PRONI is clearly in breach of FOIA for not responding within 20 working days, the Commissioner cannot make the department do anything since they don’t have a minister. Those making requests for transferred information in Northern Ireland are effectively losing their rights because there is no minister.

It works the other way too. If Northern Ireland government departments want to withhold information relating to policy making, they are generally able to rely on s.35(1)(a), the exemption covering the formulation or development of government policy. However, if that or other exemptions don’t apply, they would want to rely on the exemption at s.36(2)(c), which only applies if the authority’s qualified person provides an opinion that disclosure would or would be likely to prejudice the effective conduct of public affairs. In Northern Ireland’s government departments, the qualified person is, as it is in Westminster departments, a minister. So they are currently unable to use the ‘safety net’ exemption in FOIA. How ironic that Northern Ireland’s government departments find themselves stuck for a backstop.

In practice of course, this is likely to impact on applicants in the form of considerable delays in responses to their requests.

It turns out that not having a minister is a bit of a problem for anyone who wants to make, or is tasked with answering, an FOI request.

References:

ICO decision FS50696780

ICO decision FS50696778

ICO decision FS50696776

 

It’s about time

FOIMan highlights a change in the final version of the recently revised s.45 code that confuses rather than clarifies FOI deadlines.

Cabinet Office

Last November the Cabinet Office published a draft of a revised s.45 code of practice. I summarised the content briefly here on the FOIMan blog at the time, and later wrote a more in-depth piece for PDP’s FOI Journal, which you can read here. An even more thorough (and critical) analysis was produced by the Campaign for FOI in its response to the consultation on the draft code.

Back in July the final version of the code was published. Not a lot had changed but what had isn’t to be much welcomed. One particularly regrettable change simply adds more complexity to an already confused issue.

One matter of repeated debate between practitioners and those using the Act is the seemingly indisputable matter of when a request is received. This has caused particular confusion in relation to requests received by public authorities over a weekend or on any other non-working day.

In fact, it shouldn’t be a difficult question to resolve. The wording of the Act itself offers a clear solution. At s.10(6) it defines the ‘date of receipt’ as ‘the day on which the public authority receives the request for information’. Note that it talks of ‘the day’. Not ‘working day’, a phrase used elsewhere in s.10. So the day of receipt can be a Saturday, for example. The first working day – day one for the purposes of FOI – is the following Monday. This is the approach taken by the Information Commissioner in her guidance (see paras. 36-39).

What’s more, the draft of the revised code also followed this interpretation at paragraph 4.2:

The date on which a request is received is the calendar day on which it arrives… If a request is received on a non-working day, for example a Saturday, the next working day i.e. Monday, should be counted as “day one” towards the deadline.

But look what the final version says (with my emphasis in bold):

The date on which a request is received is the day on which it arrives or, if this is not a working day, the first working day following its arrival.

It is not clear why the approach was changed, but changed it was. The Cabinet Office’s final choice of wording potentially buys public authorities who follow it an extra day when answering FOI requests, yet appears to contradict the Commissioner’s guidance, and more importantly, the wording of the legislation itself. It will be left to the Commissioner and tribunals ultimately to decide which approach they think is correct if this is ever in dispute. I would suggest that it is most likely that they would plump for the wording of the legislation over what the Cabinet Office wishes it said.

Ultimately this is an argument over a day. And given that FOI also requires requests to be answered promptly, it is perhaps academic to a degree. But it does seem unfortunate that the Cabinet Office has chosen to sow yet more confusion over the interpretation of FOI, when it had an opportunity to provide clarity.


Get in touch if you would be interested in training on FOI, including the new code of practice. The new code is covered extensively in my forthcoming book The Freedom of Information Officer’s Handbook, which is due out in the next couple of months. Details on how to pre-order (and obtain a discount) can be found opposite.