Tag Archive for Exemptions

A warning shot across the bows?

FOI Man considers the immediate impact of the Justice Select Committee’s report on FOI – on the Information Commissioner.

Before taking a break to follow the marvellous Olympic and Paralympic action, I last wrote here about the Justice Select Committee’s post-legislative scrutiny report. We’re still waiting to hear how Government will respond to the Committee’s recommendations, but I thought I’d write about the possible immediate impact of the report.

The headline conclusions have been discussed at some length (for example here by the Save FOI campaign) but what I find most interesting after reading the report more carefully are the messages the Committee appears to be sending to the Information Commissioner and Tribunals.

The Committee hasn’t been overtly critical of the Commissioner and took on board many of the messages Chris Graham put to them in his characteristically robust manner. But if you look closely enough the messages are there.

Notably, there was no recommendation – as some had expected – to make section 35, the exemption covering policy formulation and development, absolute. Whilst the immediate reaction to this of campaigners (including myself) was relief, it is notable that the Committee appears to have agonised at length on the issue of providing a “safe space”. It eventually concluded that it could not justify “any major diminution of the openness created by the Freedom of Information Act”. But it went on to caution:

“we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions” (paragraph 201)

Who could they possibly be reminding? On the one hand, they were clearly saying to those in Government that they should feel that they could discuss the most sensitive issues without fear of disclosure. Gus, old chap, relax – there is plenty of protection in the Act for your successors to work within.

But the flip side of that is that those “determining” the scope of the safe space should be interpreting it in a way that supports that sense of safety in the Cabinet Office. I sense that at least some of the Committee think the Commissioner (and the Tribunal of course) needs a reminder of this. That perhaps Cabinet papers and NHS risk registers have been a step too far.

And if the Commissioner ignores this friendly advice? Well, the Committee recognises “that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.” Back off Graham, or the Government will be at its liberty to flick you the big V.

This isn’t the only area where the Committee appears to be subtly signalling to the Information Commissioner and Tribunals that maybe they’ve been pushing the boundaries of acceptable interpretation of Parliament’s will.

Universities had indicated in their evidence that they were concerned about protection for those carrying out animal research. In their conclusions, the Committee encouraged universities to rely on section 38 (the exemption for health and safety) and stressed that they “expect that the Information Commissioner will recognise legitimate concerns.” (paragraph 222)

Similarly, universities, together with NHS bodies and others, raised concerns about FOI endangering their competitiveness in an environment where they are increasingly competing against private providers. The Committee looked at this and could reach no conclusion as to whether the exemption at s.43 was sufficient to protect public bodies. But they did state explicitly that “there is a strong public interest in competition between public and private sector bodies being conducted on a level playing field to ensure the best outcome for the taxpayer.” (paragraph 231)

It is presumably going to be difficult for the Commissioner and anyone else applying the Act to ignore such strong statements on the practical exercise of exemptions in the Act. Whilst we may have to wait a while to hear what the Government thinks of the Justice Committee’s conclusions on FOI, I wonder if we’ll begin to see their impact on the Commissioner and Tribunals almost immediately.

 

 

In defence of the exemption

FOI Man suggests that we should view the use of exemptions, and even decisions of the Information Commissioner and Tribunal, in a different light.

It’s a common shorthand in media stories about FOI that use of an exemption by a public authority = public authority secrecy. And of course there have been situations where authorities have been unnecessarily secretive. But I’d like to explain why I think exemptions – and complaints about their application – are often reported unfairly.

There’s the obvious point, of course, that most people recognise that some information must be withheld to enable public services to function – and more importantly to protect the rights of the public they serve. And it’s no surprise that views of what must be withheld will differ between those making requests and those holding the information.

I would argue further that even where an authority is later ruled against by the Information Commissioner or Tribunal, it may be unfair to attack them for applying exemptions in the first place.

FOI Officers – and their superiors – cannot be expert in every area that might be subject to an FOI request. We are dependent on advice from others. To give an example, people are often critical of public bodies for withholding information about security matters. But if a public authority receives advice from the police or security services that disclosing information will prejudice the safety of its staff or the public, it will be brave (to put it kindly) to dismiss that advice. Any FOI Officer worth their salt will of course ask for evidence and may query aspects of the advice, but ultimately they are unlikely to disclose information having received that advice.

Don’t forget also that in many cases, an authority has to reach a judgment on where the balance of the public interest lies. That process is subjective by its very nature. With the best will in the world, it is likely that authorities are going to reach different conclusions to the Information Commissioner on occasion.

That’s why FOI provides an appeal process. If information is disclosed only as a result of an internal review or Commissioner decision, I would argue that that is not a failure of FOI. It’s how it is supposed to work. It allows the more difficult cases to receive appropriate levels of scrutiny. Separated from the chaff of the more easily answered requests, a case that reaches internal review, and even moreso the Commissioner or Tribunal, will receive additional attention and resource. The threat of enforced disclosure will provoke more serious attention from external, as well as internal, sources of information and authority.

This is not to say that public authorities should not take requests seriously when they’re first received. They should be trying to answer the request correctly first time. And where there is clear guidance and case law that can be relied upon, there is really no excuse for ignoring that. But where there is significant doubt, and doubt that could put peoples’ rights or safety at risk, I find it hard to criticise the public authority that plays it safe. Even if they’re eventually forced to disclose that information.

I’ve always felt that more people should ask for internal reviews of how their FOI request was handled. Complaints can feel uncomfortable for those who are involved. But they should be seen as a positive thing – from both sides. For the public authority it can be a useful way to learn where improvements can be made. For the complainant, although their answer might be delayed, they might eventually get the response they were looking for, and they will have helped the cause of other requesters. I can certainly think of occasions, as an FOI Officer, when a request for internal review, or a complaint to the Information Commissioner, might have assisted me as well as the requester – I haven’t always agreed with the approach I’ve been instructed to take.

But neither side should view a reviewed decision as – necessarily – an indictment of the authority and its attitude to FOI. Complaints processes – whether related to FOI or other matters – are about reaching the right outcome, not necessarily about apportioning blame. If some of the reporting of FOI could recognise that, the whole process might become a little less confrontational, and rather more productive for everybody involved.

 

Should a public body disclose details of requests made by a named individual?

FOI Man looks at whether a named individual’s FOI requests should be published or disclosed. 

Guardian writer Ben Goldacre asked on Twitter whether public authorities are able to publish or disclose the names of FOI requesters. This is an interesting question which is difficult to explain in 140 characters.

First off, my basic rule on this is “no”. Fundamentally, I just don’t think its ethical. Most FOI Officers are even nervous about circulating the details of a requester internally, let alone outside the organisation. But here’s the legal argument.

I could spend a long time telling you about a chap called Durant, and case law involving him which established the current legal definition in the UK for what counts as personal data. But I won’t. Suffice to say that information about an individual that has a “biographical” element will be personal data.

The fact that you as an individual make an FOI request about a particular subject is enough information in my view to be considered personal information. All personal information is covered by the Data Protection Act, which sets out conditions for the processing (including disclosure) of that information. The most important is that any processing should be fair and lawful.

Clearly it’s unfair if a public authority announces that you’ve been making FOI requests to them without your consent. Most people wouldn’t expect that to happen, so it would be a nasty surprise if it did. Which is exactly what happened to one requester to a GP’s surgery recently.

But, as Ben Goldacre asked, what if you’re a big multi-national tobacco company making an FOI request? Well, in theory, that’s different. A tobacco company is a “person” from the point of view of FOI, but it is not a “data subject” in Data Protection terms.

But in practice, it might not be that simple. Even an FOI request from a company is usually signed by an individual employee. So is the request from the company or the employee? It will depend on the context, and may not be clear.

If someone makes an FOI request for a named individual’s FOI requests, that information would still be personal data, and in theory, a public authority could argue (and in my view would rightly argue) that section 40(2) of FOI applies – ie the exemption for personal data. The exception might be if they had been given consent by the original requester (the data subject) to disclose their requests. Indeed, the section 45 Code of Practice (also known as the Lord Chancellor’s Code), recommends that public authorities consult third parties (and that would include corporate bodies) if they are asked for information provided by those third parties. So in theory, at the very least, a public body should consult a requester before disclosing their requests.

This can lead to a spiral of requests. I remember one request for correspondence between the Mayor of London and an individual. I then consulted the individual, who made an FOI request for the identity of the first requester. So…then I had to ask the first requester for consent to disclose his identity. It can become rather complicated, and the FOI Officer has to keep his wits about him in these cases!

Another exception might be if there was a public interest in disclosing the requests made by a named requester. This might well be another argument for disclosing the requests made by, say, a tobacco company. At a stretch, it might be feasible for a public body to argue that there was a public interest in disclosing the requests made by an individual who had made excessive use of FOI to tie up the resources of an organisation. But that’s a dangerous road to go down. I can imagine the Commissioner or Tribunal arguing in response that the Act provides alternative mechanisms for dealing with such situations.

It would be different if a requester asked for, say, all requests on a particular subject, and the requests could be disclosed without identifying the requester. In effect, the information ceases to be personal data so can be disclosed. Similarly, a public body can publish requests as long as they don’t name the requester. Indeed this happens all the time with Disclosure Logs.

So, in summary, public authorities shouldn’t publish or disclose the requests made by a named individual without their consent, unless there is a strong public interest in doing so.

 

Should Cabinet minutes remain in the closet?

FOI Man challenges the claims of the Lord G.O.D. and his exalted predecessors that FOI threatens good government.

Just before Christmas, the outgoing Cabinet Secretary, Gus O’Donnell, known affectionately (mostly) in the Civil Service as G.O.D., took the occasion of his retirement to criticise FOI. In particular, he felt that there was not enough protection for Cabinet minutes, inferring that he favoured an amendment to the Act to protect them. He told the Times:

“Freedom of Information that allows the public to ask questions about things is fine, but the bit that I’m really against in freedom of information is that bit where it reduces the quality of our governance…I want Cabinet to have real discussions, for people to be able to say, ‘I disagree with this policy’.”

The now Lord G.O.D. (he now has a seat in the House of Lords), is not alone in raising this concern. This week a short debate in the House of Lords allowed a number of his predecessors as Cabinet Secretary to air similar views. And it’s not just former Civil Servants. Back in 2007, the then Secretary of State for Trade and Industry, Alistair Darling, wrote to the Lord Chancellor, Lord Falconer, to raise his concerns:

“I am concerned that the FOI Act, as it appears, prevents us from protecting robustly and across the board advice from officials to Ministers…we will need to watch Information Tribunal case law carefully and in due course consider whether change to the legislation is needed to redress an apparent imbalance between the “right to know” and the protection of private space where necessary for good governance.”

So what sort of change do FOI’s critics envisage? At the moment Cabinet Minutes (and related discussion) are protected by section 35(1)(b) of the Act. Section 35 is a class-based exemption. This means that there is no prejudice test, as there is for, say, section 36 (prejudice to effective conduct of public affairs). Cabinet Minutes and other ‘Ministerial Communications’ are exempt from disclosure because they fall within that category. Whenever an appeal relating to this exemption ends up with the Commissioner or Tribunal, they usually uphold the application of the exemption to Cabinet Minutes and their like – they either are, or aren’t, Ministerial Communications.

However, the exemption, like many others, is subject to a public interest test. On the rare occasions where the Commissioner or Tribunal have ruled in favour of disclosing Cabinet Minutes, they have argued that the Cabinet Office have judged the public interest incorrectly. So in effect, it’s this aspect of the Act that critics want to change. They want the exemption for Ministerial Communications to be made absolute (or perhaps for a new narrower absolute exemption for Cabinet papers to be introduced), so that a public interest test won’t apply. This is the same change that was made to the exemption covering correspondence from the monarch and her heirs in 2010. (It’s worth pointing out that whilst it might be possible for the UK Government to introduce an absolute exemption for Cabinet minutes under FOI, discussions at Cabinet relating to environmental matters would be subject to the Environmental Information Regulations (EIR). Exceptions in the EIR are all subject to a public interest test, and since the regulations are based on a European Directive, there is little likelihood of changing them in this way).

To be fair to those who want this change, it would not be an entirely unusual approach to Cabinet Minutes. Most countries have some level of protection for Cabinet minutes or their equivalents. In Ireland, Cabinet Minutes are protected by an absolute exemption, though this is tempered by the fact that this protection is only available for ten years (in the original Irish Act it was 5 years, but this was later amended). But in New Zealand, for example, the Government has to demonstrate that the convention of collective responsibility would be prejudiced by disclosure, before also carrying out a public interest test.

So let’s look at the key arguments against disclosure of Cabinet minutes.

The convention of collective responsibility is the convention that Ministers speak with one voice on Government policy. It is why Ministers who don’t agree with Government policy and wish to speak out against it have to resign. It is one of the most common arguments against disclosure of Cabinet minutes in this country. However, as is often pointed out, the convention is regularly undermined by former Ministers and civil servants publishing memoirs, making ‘off the record’ briefings, and leaks. It is rare, some would say, that the views of individual Ministers are not public knowledge when it comes to the most controversial areas of Government policy. The Information Commissioner’s view is that FOI is a method through which conventions may be legitimately challenged. Conventions have never been set in stone – they evolve over time to reflect political realities.

The other argument made by critics of FOI is that Ministers (or officials) can’t speak candidly because they are aware that their views might be made public. The Tribunal’s answer to this in a number of cases has been to point out that Ministers and their most senior officials are not exactly “shrinking violets” (to quote a phrase used in a comparable Tribunal decision looking at the BBC’s Board of Governors). Similarly, G.O.D.’s argument that the risk of disclosure undermines governance – because minutes have to be written in an anodyne way in case of disclosure – has also been countered by the Tribunal in the past, who argue that good practice should prevail over sensitivity. (The Tribunal dismantled a number of these arguments quite effectively in a case involving the then Department for Education and Skills in 2007; the arguments have been rehearsed many times since).

The Ministry of Justice found it difficult to reach any conclusion on the matter in its recent Memorandum, so the evidence in support of G.O.D.’s arguments is clearly rather equivocal. According to Eagles, Taggart and Liddell (Freedom of Information in New Zealand, OUP, 1992), who studied the New Zealand Official Information Act, the fear of disclosure has had little impact on the way that public employees and ministers express themselves in that jurisdiction. It is argued that this is because firstly, accurate records are necessary for these people to defend themselves in the future; and secondly, the risk of disclosure of any one document is actually very slight. This last argument reflects my own experience, and that of other FOI Officers I’ve spoken to. The biggest problem we have had is with officials who have been somewhat flippant in correspondence or notes and only realise the error of their ways when a relevant request is received. There is little sign that fear of FOI has inhibited their record-keeping.

It seems to me that fears over Cabinet minutes are misplaced. I’ve looked at the Commissioner’s decisions in relation to Cabinet Minutes. The Commissioner has looked at 14 cases where s.35(1)(b) was applied in relation to Cabinet or Cabinet Committee minutes. Of these, half upheld the Cabinet Office’s view that the minutes should be withheld. The remaining 7 cases related to the Falklands War (which happened 30 years ago, let’s not forget), the Westlands affair (almost 30 years ago), Devolution discussions in 1997/8, and the takeover of Rowntrees by Nestle in 1988. The only decision that related to recent history was that ordering disclosure of some of the minutes recording discussion of the Attorney General’s advice in relation to the war in Iraq. And both the Commissioner and Tribunal made some convincing (to me at any rate) arguments in this case as to why the disclosure was in the public interest. They also made it clear that they viewed the circumstances as unusual.

The Commissioner and the Tribunal have repeatedly, and reasonably, made clear that the public interest in withholding information will diminish over time. Is it really that odd that they would consider that it is reasonable to disclose Cabinet minutes nearly 30 years after they were written when the Government itself is committed to opening up Cabinet minutes after 20 years at some unspecified point in the (hopefully) near future? What always strikes me whenever I look at such decisions is that the Cabinet Office, to borrow the famous criticism of first world war Generals, are always fighting the last war. They keep spouting the same arguments against disclosure, even though the Commissioner and the Tribunal have repeatedly dismissed those arguments. And G.O.D. and his predecessors are repeating them again.

Instead of parroting the same old arguments, or calling for FOI to be reined in, wouldn’t it be more productive for the Cabinet Office to examine previous decisions and work out a better strategy for protecting information where it really is necessary? It seems to me that in most cases, where they are able to demonstrate that there is a public interest in withholding information, the Commissioner is willing to listen. But what he can’t do is act as though FOI doesn’t exist in relation to Cabinet minutes. However much some would like that to be the case.

The best, and most succinct, argument against amending the Act’s provisions for Cabinet minutes came, encouragingly, from the current Government’s Minister responsible for FOI, Lord McNally, as he closed this week’s debate in the House of Lords. I will leave the last word on this to him:

“…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

 

Take it Online

FOI Man explains that online discussion between FOI Officers is part of the job, not a nationwide conspiracy.

I’ve become aware of a new form of twisted corruption that FOI Officers are prey to. And been shocked to realise that I too am amongst the shadowy forces at work. Our crime? Subscription to an email discussion list.

Of course, most professions have such a resource. In my own organisation, I know that the Finance Officers follow lists for Finance Officers; the Facilities Officers follow lists for Facilities Officers; and the Chief Executive follows a list for Airline Pilots…no, sorry, Chief Executives. Most people would recognise that this is a cost effective way for professional people, geographically separated, and often isolated in their own organisations, to share best practice and find solutions to common problems.

So why is it that when FOI Officers do this, we are accused of collusion and conspiracy? I know of one requester who had seen the content of correspondence on the list (notably out of context) and complained that all the correspondence was about how to stop information being disclosed. This apparently demonstrated that not only those who posted messages, but also those who read them, were acting against the spirit of the legislation.  Oh right then, case closed.

Of course all the discussion is about how to stop information being disclosed!!! Our jobs are easy when information can unquestionably be sent out. We don’t need to discuss those cases because they are uncontroversial and can be easily resolved. Applying exemptions is the most difficult part of our jobs (which, by the way, means that we use them as sparingly as possible). That’s the stuff we need the help of our fellow professionals with.

It is helpful to know that if you are considering using an exemption, you are not straying far from the pack. But equally, if there are Officers posting to the list arguing that an exemption can’t be legitimately applied, that can lead others to look again and maybe reach a different conclusion. What’s more, there’s no imperative for FOI Officers subscribing to the list to go along with what others are proposing to do. It’s a matter of choice for each institution, quite rightly, how to respond to specific requests.

This ‘revelation’ (which as far as I know, no FOI Officers have ever sought to hide) has prompted some requesters to threaten ‘investigations’. They are speaking to the Information Commissioner. To the media. To Uncle Tom Cobley. To all.

I don’t blame requesters for being unhappy with our responses. I am happy to look again and ask more senior officers to review how I’ve handled requests. That’s the process. I don’t even blame them for asking questions when they receive similar responses from several organisations (but isn’t that pretty likely? If you’ve asked a question about an issue that is sensitive to one organisation, the chances are that it is sensitive to all).

But for goodness sake, can we please be allowed to do our jobs? In an informed way without every routine action that we take being seen to be a conspiracy? What next? Will FOI Officers be banned from reading my blog in case I corrupt them with my dark and cynical ways?

Believe me requesters when I say that if you think that the problems with FOI lie with FOI Officers talking to each other, you are barking up the wrong tree.