Tag Archive for Amendments

Government responds to Justice Select Committee

FOI Man reports on the Government’s response to the Justice Select Committee’s post-legislative scrutiny report.

The Ministry of Justice has published the Government’s response to the Justice Select Committee’s post-legislative scrutiny report on the Freedom of Information Act. You can read the Justice Committee’s report here, and the Government’s response here.

I have commented on the Government’s response on behalf of the Save FOI Campaign. My post on that site summarises the key points of the Government’s response and provides my analysis of what it means for the future of FOI.

Draft Datasets Code of Practice

FOI Man highlights a new draft Code of Practice under section 45 of the Freedom of Information Act.

It’s all go with FOI at the moment. No sooner have we had to wade through the ICO’s Anonymisation Code of Practice than another comes along from the Ministry of Justice – this time a draft Code setting out best practice for meeting the new requirements under FOI relating to datasets.

The draft Code is a supplement to the existing section 45 Code of Practice, setting out best practice for public authorities in complying with FOI. It is required by the amendments made to FOI by the Protection of Freedoms Act (which are not yet in force).

It provides clarification on interpreting the definition of dataset in the amendments, as well as setting out the three licences (developed by The National Archives) that public authorities will be expected to use when licensing re-use of datasets (ie open, non-commercial and charged). What isn’t yet clear is what fees public authorities will be able to charge for re-use. The amendments allow for the Secretary of State for Justice to lay down regulations to allow this, but there is no news yet on if, or when, such regulations will be forthcoming.

It should be stressed that the Code is a draft, and the Government is inviting comments on it via the gov.uk website. So if you’re interested in the open data agenda, or simply want to ensure the Code is clear enough, do go and make your views known.

Justice for FOI

FOI Man greets the Justice Select Committee’s Post-Legislative Scrutiny report with some relief.

This week is a very exciting time for everyone in the UK. It’s finally here, after 7 years, and months of wrangling and concerns over cost. Yes, today the Justice Select Committee has published its report on its post-legislative scrutiny of the FOI Act.

And my first reaction is that I’m relieved. The Committee has rejected the most damaging proposals, and reaffirmed the importance of FOI in enhancing our democracy. They reject charging for FOI requests. They say no to the Lord GO’D’s proposal to give absolute protection to Cabinet papers. They say there is no need for the 20 working day time limit to be extended as ACPO had requested.

House of Commons

House of Commons, home of the Justice Select Committee

What’s more, they’ve recommended some significant tightening up of the Act. Statutory limits of 20 working days for handling internal reviews should be introduced. Extensions to consider the public interest should be similarly restricted (with longer allowed for consultation with third parties). To improve compliance with existing deadlines, the Committee lifts one of my own recommendations – that public bodies should be required to publish data on their compliance with deadlines. They agree with my argument that such publication would allow the public – and the Commissioner – to better scrutinise and compare the performance of public bodies.

One aspect of the Act that has been widely criticised is the treatment of the offence set out at section 77 of the Act of destroying or unlawfully withholding information that has been requested. The MPs agree with the Information Commissioner that this should be made an “either way offence” so that the currently risible time limit for investigation of 6 months would be scrapped. They go further in recommending that the maximum fine for this offence should be increased beyond the existing £5,000 to “send a clear message to public bodies and individuals contemplating criminal action”.

In evidence, I made the point that FOI can only really be effective with senior leadership. I criticised high profile figures who have publicly attacked the Act. The Committee responded to this, and calls for “leadership and focus” by senior officials. It is also, it should be noted, very critical of former Prime Minister Tony Blair and his attitude to their inquiry. He, of course, is the most high profile critic of this legislation – which his own government introduced.

The Committee has largely taken the approach that I have promoted here of “education not legislation” to improve FOI. Controversially perhaps, they have recommended that the cost of handling individual requests should be included in responses, and – rather oddly, I think – that the names of requesters should be included in disclosure logs. The Committee are also supportive of my proposal to introduce a Code of Practice for requesters.

Universities were represented disproportionately in the evidence given by public bodies, and they were handed a dedicated oral hearing. As an FOI Officer in higher education myself, it is with some relief that I greet the Committee’s statement that:

“…universities are an important part of the public realm and we believe that they are generally regarded by the public and by those working in universities as important public institutions. We do not therefore recommend that universities should be removed from the jurisdiction of the Act.”

However, the call of Universities UK and others to amend section 22 of the Act (the exemption for information planned for future publication) to incorporate a Scottish-style research pre-publication exemption did attract the Committee’s sympathies. My views on this have been set out before, but whilst I’m sceptical of the need for such an exemption, I can’t really see much harm resulting from it.

Universities, NHS bodies and others had expressed concern that FOI prevented them from operating on a level playing field with the private sector as the Government increasingly places an emphasis on competition. The Committee hasn’t reached any conclusion on this point, but urges the Government to keep it under review. There is the possibility at some point of an amendment to section 43 of the Act to address this.

The Committee looked at whether private companies should be subject to FOI. They concluded that the use of contractual terms to protect the right of access to information where services had been outsourced seemed to work well, so there is no recommendation to expand FOI in this way.

There is very little in the report that would cause any significant weakening of the Act. We should watch the Government carefully when it responds to the Committee’s suggestion that the “acceptable limit” be reviewed and possibly reduced from the 18 hours of staff time currently allowed to 16 hours. My own feeling is that this would not hugely reduce the number of requests that could be answered, but much depends on the way that the Government chooses to amend the relevant regulations, as the Campaign for FOI has already pointed out.

Many FOI supporters will be a little concerned at the Committee’s comments on the veto. They have chosen to support the veto in principle as a way to counter arguments about “the chilling effect”. Effectively they are saying that civil servants and Ministers need not fear that discussions around policy formulation will be disclosed as they can be protected by the veto if necessary. Some might interpret their conclusions as encouraging a wider use of the veto in future. This, in my view, would be unwelcome and a step backwards.

Overall, the Justice Committee has found that FOI has achieved its principal objectives, and has recognised that the benefits it brings – whilst often not quantifiable – outweigh its costs. Now we must wait and see how the Government will respond to this report. But fundamentally, what’s important now is that public bodies accept that FOI is here to stay.

The SaveFOI Campaign have also commented on the report.

Protection of Freedoms Act – FOI changes

FOI Man summarises the changes to the FOI Act that result from the passing of the Protection of Freedoms Act last week. And finds that not much has changed over the course of the last year.

The Protection of Freedoms Act came into force on 1 May 2012. Amongst its many implications are those for the Freedom of Information Act (though we still await a commencement order in respect of these provisions, so it is not yet clear when they will come into force). I previously wrote about this when the Bill was first published early last year, but now that it has entered the statute books, it is time to see what the approved legislation requires.

Part 6 of the Act covers the freedom of information and data protection changes. Section 102 amends section 11 of FOI to the following effect:

  • where a public authority is asked for information that is in the form of a dataset (defined in the new section 11(5) – or s.102(2)(c) of PoFA), and the requester asks for it in electronic form, as far as is reasonably practicable (explained at s.11(2) of the existing FOI Act), the public authority must disclose the dataset in a re-usable format.

A new section 11A:

  • requires that where the copyright of a disclosed dataset belongs to the public authority, it will be subject to a licence to be specified by the Secretary of State (presumably Justice) in the Section 45 Code of Practice (a new revision of which, we assume, must be forthcoming);
  • allows an authority to charge a fee for re-use in line with section 11B or any other regulations that provide for a fee to be charged for re-use;
  • requires an authority to issue a fees notice to an applicant where it is planning to charge for re-use;
  • removes the obligation to allow re-use until such a fee has been paid.

And section 11B:

  • empowers the Secretary of State (again, presumably Justice), in consultation with the Treasury, to establish fees for re-use of datasets through regulations;
  • these regulations would apply to datasets disclosed in response to FOI requests and listed in a public authority’s publication scheme.

Talking of publication schemes, public authorities will be obliged to publish datasets disclosed in response to FOI requests in their publication schemes unless they are satisfied that it is not appropriate. They will also have to publish updated versions when they change. Section 19 of FOI has been amended to this effect (it now includes a section 19(2A-F)).

Section 45 has been updated to require the Secretary of State to make provision in the Code of Practice for disclosure of datasets.

Section 103 of the Protection of Freedoms Act closes down the loophole in the coverage of FOI for bodies established by two or more public authorities by amending section 6 of FOI.

Section 104 extends certain provisions of FOI that hitherto had not applied to Northern Ireland to that jurisdiction.

Section 105 amends both the Data Protection Act and FOI to extend the Information Commissioner’s term of office from 5 to 7 years, and limit those appointed to the post to one term.

Section 107 amends section 47(4) of FOI allowing the Information Commissioner to charge for “relevant services” – training, multiple copies of published material, and conferences – without consulting the Secretary of State (as he was obliged to do previously).

In summary:

  • public authorities are obliged to make datasets available in a re-usable format on request;
  • re-use will be allowed under the terms of licence(s) to be announced, and charging will probably be allowed in line with existing or new regulations;
  • disclosed datasets will normally have to be published (and kept up-to-date) under an authority’s publication scheme;
  • publicly-owned companies owned by more than one public authority will no longer escape FOI;
  • Information Commissioners will serve only one 7-year term; and
  • expect the Information Commissioner’s Office to start charging for training and conferences.

Not much has changed on this aspect of the Act since the first draft over a year ago. We now need to watch out for the commencement order bringing these changes into force, the revised section 45 Code of Practice, and any regulations on charging for re-use.

FOI shorts – The Telegraph, Justice Committee and Human Rights

FOI Man is mentioned in the national press, the Lord GO’D descends upon the Justice Select Committee, and the relationship between FOI and the Human Rights Act is to be examined in the Supreme Court

Pleased to be quoted in a piece in the Telegraph Online (not sure if it will make it to print – we’ll see) which is effectively a follow-up to my Save FOI piece the other week on the NHS pointing out that whilst FOI undoubtedly costs money, it should be seen in perspective against other expenditure being carried out by public bodies. I think this is a really important point, and I hope more journalists, politicians (especially the Justice Select Committee members) and others pick it up. In a week where we’ve seen those on the highest rate of tax get a tax cut, it seems a topical point.

Talking of the Justice Select Committee, it’s been announced today that there will be another oral hearing next Tuesday 27th March. This promises to be quite a blockbuster, featuring Lord Gus O’Donnell, Sue Slipman of the Foundation Trust Network and several other NHS representatives, and Lord Peter Hennessy (who those with a bent for constitutional and modern British history will no doubt have a soft spot for). My prediction (for which I hardly need a crystal ball) is that FOI will receive a good going over next Tuesday. If you want to get a sense of the issues that will come up together with my response to them, you can take a look at:

How the Committee members handle these witnesses will tell us quite a lot about the direction that they are going in. So Tuesday will be another important day for the future of FOI. If you can, watch Parliament TV’s live coverage or follow @SaveFOI on Twitter – we will be live tweeting the whole thing, technical constraints allowing.

The relationship between FOI and the Human Rights Act has been coming under some scrutiny of late. Times journalist Dominic Kennedy has pursued his request to the Charity Commission in relation to George Galloways’s Mariam Appeal to the Court of Appeal, arguing that the refusal of his request under section 32 of the FOI Act breached Article 10 of the European Convention on Human Rights (which HRA brings into UK law). Article 10 is the right to freedom of expression. There has been much debate about the extent to which the right to access information comes within the ECHR and therefore HRA, so this is an important case. The Court of Appeal ruled against Kennedy, but importantly allowed him to appeal to the Supreme Court. The Supreme Court has muddied the waters rather of late with its decision in the Sugar v BBC case where they ruled that Article 10 did not affect the BBC’s refusal to disclose a report which it argued related to its journalistic pursuits (covered by the BBC’s derogation). This appeared to fly in the face of several recent European Court of Human Rights decisions. The story is covered with much greater applomb (and indeed knowledge) by Adam Wagner on the UK Human Rights Blog and you can also read the decision of the Court of Appeal if you want to know more.

Meanwhile, we’re still waiting to hear why the Information Tribunal thinks the NHS Strategic Risk Register should be disclosed. Jill Rutter at the Institute for Government speculates that it might not really be worth the wait. Good job really.