Tag Archive for Cabinet Office

Will FOI be humbled?

The Cabinet Office

FOIMan gazes into his crystal ball to see what will result from the government’s response to the House of Commons’ Humble Address.

Amongst everything else that happened this very unusual week (although aren’t they all lately), the House of Commons made a ‘humble address’ to the Government requesting access to a document outlining plans for a no-deal Brexit, and perhaps more controversially, communications between certain named civil servants and special advisers relating to the prorogation of Parliament. These communications were to include those in private email accounts, WhatsApp, text messages and various other cited forums.

Late on Wednesday, Michael Gove in his capacity as Chancellor of the Duchy of Lancaster (and therefore in charge of the Cabinet Office and no-deal planning – and come to that, government FOI policy), wrote to the instigator of the humble address, Dominic Grieve, refusing to provide the communications. He argued that it was an improper use of the humble address mechanism to seek such communications of officials. He further suggested that this information would be exempt under FOI, mentioning section 35 (formulation of government policy) and section 36 (specifically maintenance of ministerial collective responsibility), and concerns about breaching the Data Protection Act (as others have pointed out, it would be the General Data Protection Regulation that would potentially be breached, but that’s an academic point in this regard).

A humble address is not an FOI request. And with Parliament prorogued, it is difficult to know what Dominic Grieve and colleagues can do about the Government’s effective partial refusal. So what happens next? And is it going to prove possible for the communications to be disclosed? I’ve polished my crystal ball to gaze into the future. A caveat – all of the following assumes that a political deus ex machina fails to come to the rescue. And assumptions in the current climate are, of course, hugely dangerous… But excepting a change in government or similar that results in a more sympathetic ear to this request, here are my predictions.

First, even if Dominic Grieve hasn’t followed up with an FOI request for the refused communications, I’m sure that the Cabinet Office is right now receiving a deluge of almost identical requests asking for them.

Second, the Cabinet Office will (eventually, as they will almost certainly delay responding to after the 20th working day) refuse these requests claiming variably that they are vexatious (poor harassed Dominic Cummings); exceed the cost limit;  and claiming a) the communications are not held, and b) that even if they were, they are exempt under s.35 and/or s.36, or that disclosure would breach data protection laws so they are exempt under s.40(2) of FOIA. It is very easy to challenge the arguments that they will use (see below), but that won’t stop them.

Third, several requestors will (having had no luck with an internal review), complain to the Information Commissioner. The Information Commissioner will discard the vexatious argument (as long as you haven’t been too rude) and the cost argument. We’ve seen before what happens when Michael Gove’s officials use private channels to communicate about their work – so the Information Commissioner would rule that the communications were held as long as they related to government business (which the discussion of prorogation clearly is). Anything not related to the conduct of government business would be excluded so many of the privacy concerns raised by Mr Gove will not be at issue (Gove suggests in his letter that compliance with the humble address would require some sort of intrusive intervention, but as the Commissioner indicated in the decision I’ve alluded to here, and in her guidance, such a search would merely involve asking the individual concerned to supply relevant correspondence – there is no question of anyone else searching through their private communications).

In respect of the communications which are judged to be ‘held’ for the purposes of the request, it is certainly the case that communications will be or contain personal data of the individuals listed in the humble address. However, data protection laws do not prevent disclosure of personal data in all circumstances. Public authorities are expected to consider if there is a legitimate interest in disclosure of the requested data (in this case, Michael Gove himself alludes to the ‘legitimate desire from Parliamentarians on all sides to understand the impact that leaving the EU without a deal would have’ and there is an obvious legitimate interest given the controversy around prorogation of Parliament, including accusations that the Prime Minister lied to the monarch, in the public being able to find out for themselves what the truth of these allegations may be); whether disclosure is necessary to meet that interest (there isn’t another way to find out how and why this decision was reached); and whether the rights and interests of affected individuals override the identified legitimate interest (highly unlikely – these are senior high profile officials who should expect to have their work scrutinised – it’s part of the job). It therefore seems unlikely that disclosure of the requested communications would breach GDPR, so the Commissioner will rule that the personal data exemption does not apply to some (at least) of the communications. The arguments in favour of s.35 and/or s.36 will probably be harder to discount. The exemptions are relatively easy for a determined government department to apply – s.35 is phrased so broadly that it is easy to show that communications fall within its scope. The use of s.36 turns on the opinion of a Minister being ‘reasonable’ – something which whilst it’s easy to snigger at, is easier to demonstrate in law. However, both s.35 and 36 are subject to a public interest test. In the circumstances (and for pretty much the same reasons as there is a legitimate interest in disclosure of personal data), it seems likely that the Commissioner would plump for disclosure of at least some of the communications described. The Commissioner will issue a decision notice to this effect.

There is a risk during this period that the communications are deleted, the officials concerned claiming that they didn’t realise they were subject to FOI. This would put them at risk of prosecution under s.77 for deliberately destroying information which is subject to a current request. However, it is very difficult to successfully prosecute under this provision as the Commissioner would have to demonstrate that the deletions were a deliberate act, designed to thwart the FOI requests, within 6 months of them happening. Despite undertaking several times to make it easier for the Commissioner to prosecute, the government has failed to make this change.

Assuming the Cabinet Office doesn’t suddenly claim that the communications have mysteriously disappeared, their next step will be to veto disclosure. Of course they could just appeal to the First-Tier Tribunal (FTT), but following the Independent Commission on FOI’s report in 2016, the government (in the guise of Matt Hancock at that time) undertook to only use the veto after the Commissioner had ruled, and before any Tribunal involvement, so that the executive would not be seen to be overruling the judiciary.

Beyond this, if anyone still cares (which they might on a point of principle), there may be a judicial review of the use of the veto. Given the ruling of the Supreme Court in the ‘Black Spider Memos’ case in 2015, it would not be surprising if the government lost. Several times. Those who can think back that far will recall that the Supreme Court’s ruling resulted from an appeal against the application of the ministerial veto by the then Attorney General, a certain…Dominic Grieve. Ironically then, Dominic Grieve’s defeat in the past may well help him win in the future. It’s like something from science fiction.

By now, the Cabinet Office (or Boris’s feted SPADs) will be calculating, the year is 2025 (at least). In this dystopian future, nobody gives two hoots whether Nikki da Costa (or whoever) thought closing Parliament for five weeks 6 years before was once considered a sensible option.

It may well be that in this scenario, Parliament and the Freedom of Information Act have been shown to be toothless in their scrutiny of the government. I’m hoping someone sees a flaw in my reasoning above and there is a way to force the Cabinet Office to provide these communications whilst they are still useful to ongoing debate. By rights it seems they should be disclosed – at least in part – but by the time anyone is able to enforce that on a reluctant government, it will in all probability be too late to help anyone save historians of these ‘interesting times’.

Better information?

FOIMan reviews the government’s response to Sir Alex Allan’s review of government record-keeping and information management.

The Cabinet Office

“Good records management is essential for good government”, said Sir Alex Allan in his report to the Cabinet Secretary on the management of digital records in December 2015 (though dated August 2015 at the bottom of the report itself). It wasn’t particularly surprising that he found that the state of records management was not good:

“almost all departments have a mass of digital data stored on shared drives that is poorly organised and indexed.”

He didn’t comment on what that said about the quality of government.

The Cabinet Office – now responsible for information management across government – has published its response this week in a report entitled Better Information for Better Government. For a start, the fact that it has taken the best part of 18 months to respond to a fairly straightforward analysis of the issues with information management within government gives a clue to the single most important reason why records are in a mess: information management is not a priority – for civil servants or their political masters.

The problems that Sir Alex identified – lack of high-level buy-in, failure to comply with record-keeping procedures, a vast legacy of poorly organised information – persist, and the new report doesn’t really offer much in terms of a way forward. It repeats Sir Alex’s analysis of record-keeping, providing a very useful summary of how the problem developed. It also agrees with Sir Alex’s conclusion that technology is the answer – though adds little to our knowledge of how technology will do this. A table lists the technologies that are most likely to be of assistance, but no conclusions are reached as to what should be done. Data analytics or eDiscovery tools are highlighted as being a potentially useful solution, before the report points out that their expense and the need for specialist users might lead Departments not to employ them.

There’s an emphasis in the report on Departments doing their own thing. It’s not hard to imagine those leading the project being fobbed off by Departments wary of Cabinet Office interference, and perhaps weary of (mostly failed) attempts to address poor records management over the years.

The report does recognise the most significant impediment to improved information management: people. There is talk of “creating the expectation of regular information management”. This is to be done by making it easier to save records by improving the technology used, but also by using “nudge” techniques:

“Departments might also consider deploying behavioural science techniques to encourage civil servants to perform information management tasks more regularly and effectively.”

The overwhelming feeling I had when reading this report was deja vu. We’ve heard many times before that records management is poor in government (and, to be fair, in most organisations outside government). We’ve also heard that technology and culture change are the answers. Reading this report I didn’t get the impression that addressing this problem is a priority, nor that leaders in government would be pressing for that to change. Without prioritisation and leadership, I’m afraid we’ll be reading another report like this in a decade’s time, and the decade after that, and…

Sources:

Government digital records and archives review by Sir Alex Allan, Cabinet Office, December 2015

Better Information for Better Government, Cabinet Office, January 2017

 

 

 

FOI Commission Reports

FOIMan welcomes the publication of the FOI Commission’s long-awaited report and the Government’s promise not to make legal changes to the Act.

Cabinet Office

Cabinet Office

So the FOI Commission has finally reported. Many were pleasantly surprised to find that its report was well balanced and not the all out attack on FOI that had been predicted.

What’s more, the Government’s initial response suggested that the threat to FOI was over. The Cabinet Minister told the Press that “no legal changes” would be made, which would appear to rule out changes to exemptions, the appeal process and some of the other less welcome recommendations of the Commission.

It’s not clear though whether the threat has gone away completely. The Cabinet Minister, Matt Hancock’s statement in Parliament omitted the “no legal changes” phrase. Even if we do accept his quote at face value, it is not clear whether this reluctance to legislate extends to secondary legislation such as would be needed to amend the cost limit and the factors relevant in its calculation. One of the Commission’s proposals was to remove the First Tier Tribunal from the current appeal process. Mr Hancock’s press statement would again appear to rule this out in the short term. However, a recent consultation on Tribunal fees left open the possibility of charging for access to the Tribunal. Whilst the Commission gave short shrift to universities hoping to be removed from the Act’s coverage, the Department of Business and Innovation has apparently commented that a proposal along these lines in the recent Higher Education Green Paper “wasn’t related to govt review…responses on all proposals are being assessed”. So BIS is making clear that this is still on the table which may give HE critics of FOI hope.

Despite these notes of caution, that the Commission’s report and more importantly, the Government’s response, have turned out more positively than any of us hoped a few months ago is cause for celebration. It is also a victory for the hard work and resilience of Maurice Frankel’s Campaign for FOI which put together a formidable campaign. The fact that tabloid newspapers, Conservative MPs, former Ministers and even a former Head of the Civil Service, were prepared to speak out alongside the usual suspects was a major step forward. And we now have two thorough examinations of FOI – one by a Parliamentary Select Committee, and one by a government Commission – which have concluded that FOI works well. Perhaps it will now be a while before a government proposes another scrutiny of the Act. Let’s hope so.

This isn’t the end though. The Government has promised to make changes to the s45 Code of Practice, and to do more to encourage proactive publication of data. The Commission made some positive noises about extension of the Act, and many would like to now press the government to move in that direction. And there will be implications too of the General Data Protection Regulation – in particular in respect of how requests involving personal data should be handled. So even though the danger to FOI may be much reduced, there are still many developments to watch out for in the coming months and years.

If you’d like to hear more about the FOI Commission, and in particular what it tells us about how the UK Act has evolved, and where it is going, I’ll be speaking about this at Understanding Modern Government’s FOI course on 17 March. A day before that, you can also join me for a special one-off webinar on the Commission and the future of FOI for Act Now Training. Please do join me for one or both of these events.

Commission to look at FOI (and a move to the Cabinet Office)

FOIMan comments on the announcement of a new FOI Commission and a change to the way that FOI is managed within government.

MOJ and Cab Office signs

FOI is on the move

Concern has been expressed here and elsewhere at the appointment of Michael Gove as Justice Secretary. We feared what he might do to FOI, given that his past involvement with the Act had been fairly acrimonious.

Well…there’s good news, and there’s bad news. The good news is that Michael Gove is no longer responsible for FOI. The bad news is that responsibility for FOI within government is moving to the Cabinet Office. Which, if their record in answering requests is anything to go by, may well be worse.

This was merely the postscript though to a written statement laid in Parliament by Lord Bridges, the Parliamentary Secretary to the Cabinet Office. The big announcement (after the now obligatory claim to be the “most transparent government in the world”™) was that a new Commission is to be established to review FOI, after all:

after more than a decade in operation it is time that the process is reviewed, to make sure it’s working effectively.

Which sounds convincing until you recall that that was the justification for the post-legislative scrutiny carried out by the Justice Select Committee in 2012. That committee inquiry found little evidence of a chilling effect, made limited recommendations in respect of the cost of FOI, and concluded that “The Freedom of Information Act has been a significant enhancement of our democracy.” It is hard not to see this new review as an attempt to keep going until the government gets the answer it wants.

Such an impression is reinforced by the membership of the Commission. It has cross-party membership to give the impression of balance but includes Jack Straw, a man who has made no secret of his regrets over the legislation he introduced, a former Permanent Secretary of the Treasury, Lord Burns, and Lord Howard of Lympne – David Cameron’s predecessor as Conservative leader and a man so disinclined to answer questions that Jeremy Paxman notoriously had to ask him the same question twelve times.

It seems clear that the government is determined to weaken FOI. The Commission is due to report in November which does not allow for much consultation in the meantime.

The Information Commissioner has issued an initial response to the announcement. It is hard to disagree with its sentiments:

The Act is not without its critics, but in providing a largely free and universal right of access to information, subject to legitimate exceptions, we believe the freedom of information regime is fit for purpose.

If you oppose any weakening of FOI, the best thing you can do is to donate to the Campaign for Freedom of Information.

Cabinet Office issues new guidance on private email accounts

FOI Man looks at new guidance issued by the Cabinet Office which appears to directly contradict the Information Commissioner.

Email is a fraught subject for information managers. Take this recent (and rather excellent) blog post from records management consultant James Lappin. As James makes clear, few – if any – organisations have really got a handle on how the valuable information held in email should be retained and managed.

And that’s just the email held in corporate accounts. If staff or others use their own private email accounts to conduct organisational business that creates a whole new complication. Especially if you’re a public authority and that business might be subject to the requirements of the Freedom of Information Act.

Now unless you have a very short memory, you will recall that the Coalition Government has had its fingers burnt in this area before. Through clever use of both FOI and the Data Protection Act (and useful leaks), Financial Times journalist Chris Cook established that Education Secretary Michael Gove and some of his special advisers (or Spads) had been using private email accounts to conduct business which appeared to many (eventually including the Information Commissioner) to be Government business. It was suggested that this had been done to avoid potential disclosure of the emails through FOI.

Following this controversy, the Information Commissioner issued guidance to public bodies which confirmed that email held within private email accounts could indeed be subject to FOI, and what his approach to this tricky issue was.

If I were a Government that had been accused of trying to avoid proper and lawful scrutiny through the use of private email accounts to conduct government business, I think I might want to take a “whiter than white” approach to these matters in future. I’d want to make sure that I followed the Information Commissioner’s line on the issue to the letter, so that nobody could put so much as a hair between my approach and that of the regulator. That seems sensible doesn’t it?

So imagine my surprise as I read the Cabinet Office’s new Guidance to Departments on the Use of Private Email, published perhaps less surprisingly late last Friday afternoon. The guidance starts off by pointing out that it should be read in conjunction with the Information Commissioner’s guidance. So, obedient to the last, I’ve done just that. Let’s see what they say, shall we?

Information Commissioner:

“There is a need to have a clear demarcation between political and departmental work.”

Cabinet Office:

“The originator or recipient of a communication should consider whether the information contained in it is substantive discussions or decisions generated in the course of conducting Government business…”

Information Commissioner:

“In order to avoid the complications of requesting searches of private email accounts, and other private media, records management policies should make clear that information on authority-related business should be recorded on the authority’s record keeping systems in so far as reasonably practicable.”

Cabinet Office:

“Civil servants and Ministers are generally provided with access to Government email systems. Other forms of electronic communication may be used in the course of conducting Government business.”

Information Commissioner:

“When a request is received, public authorities should consider all locations where relevant information may be held. This may include private email accounts.”

Cabinet Office:

“As set out above, it is expected that Government business should be recorded on government record systems. It will generally be reasonable to search only within those systems when a request has been received.” [so presumably, any FOI Officer asking a Minister if they have emails relating to Government business in their private email account will be considered unreasonable]

Information Commissioner:

“Public authorities should also remind staff that deleting or concealing information with the intention of preventing its disclosure following receipt of a request is a criminal offence under section 77 of FOIA.”

Cabinet Office:

[Silence falls. Tumbleweed rolls down Whitehall.]

Now to be fair to the Cabinet Office (no, come on), some may see these differences as subtle and perhaps it is only my world-weary cynicism that leads me to see conflict. But the final section of the Cabinet Office guidance dealing with The Freedom of Information Act and searches for information sees the Cabinet Office take a running jump away not just from the Information Commissioner’s guidance, but also from any reasonable interpretation of the legislation itself.

“The FOI Act allows people to request information; it does not give the requester any power to dictate where the department should search for that information. It is for the department to consider where the information might be and to take reasonable steps to find it.”

I’m sure that it’s just a coincidence that Chris Cook has made a spate of requests to the Cabinet Office and Department for Education asking for information sent by individuals on Government business using private email accounts. Surely the Cabinet Office couldn’t be so touchy as to write a policy just to thwart the efforts of a single journalist?

But the point is that FOI doesn’t place any limitations on the way that requesters should ask for information. They merely have to describe “the information requested” (FOI, s.8). If that description happens to include the location that they believe the information can be found in, the only reasons why a public authority would not be obliged to provide that information is if an exemption applies to it, if the request is considered to be vexatious, or if to provide the information in that location would exceed the appropriate cost limit.

But you don’t have to take my word for it. The Information Commissioner’s Office issued a decision notice (not yet available on the ICO website) to the Cabinet Office the week before this guidance was published making exactly the same point.

Chris Cook had made a request for “copies of emails relating to the government’s education reforms, sent between the Prime Minister and a special adviser, using non-GSI email accounts”. Given the events described above in relation to the Secretary of State for Education, it can perhaps be understood why such a request might be made. The Cabinet Office argued (as in their guidance) that FOI did not allow requests for information by reference to a particular location or medium, and that Chris’s request was therefore not a valid request. The Information Commissioner concluded that Chris’s request was indeed valid for the reasons I’ve suggested above.

So the week after the Information Commissioner has explicitly stated to them that a request for information held in a specific location is a perfectly valid request, the Cabinet Office have published official guidance to Government departments contradicting the Commissioner’s view. Not for the first time, this Government appears to be interpreting the law to suit itself in the face of all the facts, and raising a single finger in the direction of the Information Commissioner.