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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).

The Freedom of Information Officer’s Handbook is here

Copies of FOI Officer's HandbookFOIMan announces the publication of his new book designed to assist FOI Officers and anyone else to better understand FOI.

I’m proud to announce the publication of my new book, The Freedom of Information Officer’s Handbook. Formally released by Facet Publishing on 3 January 2019, it is now available to purchase from online retailers, or from the publisher direct (see the end of this post for details of how to obtain a discount on the cover price as a reader of this blog).

Elizabeth Barber, chair of the Public Sector Group of the Information and Records Management Society, describes the Handbook as:

a practical guide which takes the reader on a journey through the intricacies of dealing with FOI…It contains everything you ever wanted to know about FOI and in a really easy to read format.

Whilst Jonathan Baines, well-known commentator on information rights and Data Protection Adviser at Mishcon de Reya, welcomed:

the first book which really meets the needs of and challenges facing FOI practitioners.

The book is intended as a practical guide to FOI for those who administer freedom of information and transparency requirements. However, anyone with an interest in FOI – as a requester, from an academic perspective, or otherwise – will, I hope, find the Handbook a valuable tool in better understanding FOI’s requirements and its practical implementation. The book is focussed on the UK experience of FOI, but contains extensive coverage of similar laws elsewhere and highlights the key differences between different FOI laws. As Elizabeth Barber comments, “[t]he book can be used either as a cover-to-cover read for those who are new to FoI or as a dip-in reference resource for those who are more experienced.”

The Freedom of Information Officer’s Handbook is divided into three sections:

  • Understanding the Act – looking at the history of FOI, its geographical spread, how to interpret the UK’s FOI Act including a whole chapter dedicated to the exemptions, and a guide to other sources of help
  • FOI in Context – with chapters on the Environmental Information Regulations, data protection and GDPR, records management and public records laws, transparency requirements (including open data) and copyright
  • FOI in Practice – exploring the role of the FOI Officer, what infrastructure is needed to support compliance, the stages of handling a request, how to communicate effectively with applicants and a guide to conducting internal reviews and the role of the Information Commissioner.

One copy of the FOI Officer's HandbookFor me, the release of the Handbook on 3 January 2019 marked the culmination of almost two years of hard work, and I’m extremely proud of the finished product. I hope readers will indulge me talking about it over the next few months – as anyone who has written a book will testify, it involves a huge commitment of time and effort. As an author, I’d obviously like as many people as possible to read what I’ve created.

In addition though, I wrote this book because I felt that there wasn’t enough support (or credit) given to FOI practitioners. So I hope that at least a few FOI Officers will gain some confidence from the content of the Handbook. And if anyone else reads it, that they will have more respect for, and understanding of, the people who do their best to make FOI work in practice.

More details about The Freedom of Information Officer’s Handbook, including a full list of the contents, can be found on the Facet Publishing website. You can also read Elizabeth Barber’s and Jonathan Baines’s opinions of the book in full there.


If you would like to obtain a copy of The Freedom of Information Officer’s Handbook, you can get a 30% discount on the RRP of £64.95 (purchasing it for £45.45) by emailing info(Replace this parenthesis with the @ sign)facetpublishing.co.uk, 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 where to send your copy.

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.

FOI enforcement developments

FOIMan notes a couple of developments on FOI enforcement.

A brief note of two important enforcement actions taken by the Information Commissioner’s Office (ICO) in the last few weeks.

First off, the Royal Borough of Kensington and Chelsea has been given a Monetary Penalty Notice of £120,000 for accidentally disclosing personal data. The FOI Officer apparently failed to notice that a spreadsheet contained a pivot table which held personal data in it. This is similar of course to a previous MPN given to the London Borough of Islington a few years ago. The council was criticised in particular for failing to train its FOI Officers adequately.

Even more notably, and in a first, it was reported this week that the ICO is prosecuting a councillor with Thanet District Council in Kent under s.77. Whilst this provision has always been there to sanction the destruction, hiding or alteration of records to avoid FOI, it has never been used by the ICO. The case will be heard in September, so one to watch.

News Flash: new Information Commissioner announced

The Department for Culture, Media and Sport has announced that their nomination to take over from Christopher Graham is Elizabeth Denham.

NEWS1Ms. Denham is currently the Information and Privacy Commissioner in British Columbia, Canada. This would be the first time that a UK Commissioner would be appointed from overseas. It won’t be the first time that we will have a female Information Commissioner – Elizabeth France was the Commissioner at the time that both the Data Protection and Freedom of Information Acts received Royal Assent.

The current Commissioner has welcomed the nomination:

“Elizabeth Denham is an inspired choice for Information Commissioner. As commissioner for both privacy and access to information in a similar jurisdiction, Elizabeth has shown independence of judgement and toughness of character. She will be a great leader for the ICO as it adapts to the demands of the new data protection framework – and she’ll be an effective upholder of information rights both in the UK and internationally.”

Ms. Denham will have to go through a pre-scrutiny hearing from the DCMS Select Committee, but if all goes well, the Queen will appoint the new Commissioner by Letters Patent later this year. Once this process is complete, the new Commissioner will take office in June this year. Following changes made by the Protection of Freedoms Act in 2012, Elizabeth Denham can serve a single 7 year term as Information Commissioner.