Tag Archive for exemptions

Why not just publish everything?

I’ve been meaning to write this post since I read last week about Harrow Council. Their Head of Law was reported in The Lawyer as saying:

“The default model for most councils is that we won’t give anything away unless we have to…I want to turn the whole edifice on its head. I want us to move away from the defensive position of keeping everything to ­ourselves. I want to say that everything’s public except for a few obvious areas.”

Freedom of Information campaigner and journalist Heather Brooke Tweeted that “Finally a British Council sees sense.” Surely this is exciting news for us all. The walls are falling down. Us FOI Officers can pack our bags and head off into the sunset, secure in the knowledge that our work here is done. Maybe not.

Everybody assumes that information is in handy readable chunks that can readily be published on websites, and it’s only because public authorities are all terribly secretive that they’re not there already. There may well be reports that Harrow could be publishing on its website, and as many authorities are now beginning to do, and the Protection of Freedoms Bill aims to encourage, they can make many of their datasets (ie databases) available on their website. But beyond that, there’s a big fat problem.

Email. Or correspondence in any format, for that matter. A large proportion of FOI requests across the country are for correspondence on particular issues. And much of it won’t be exempt.

But how do you cater for that in Harrow’s model? Do you ask people to tick a box whenever they send an email to indicate if it is likely to be exempt under FOI? Do you then automatically publish any email that hasn’t been ticked? What happens if somebody doesn’t realise that the content of the email is sensitive? What if they accidentally forget to delete an email trail? And do you really want to know that I met Bill from Accounts for lunch at 1 on Friday? And even if you can set up such capabilities on an email system, it is likely to involve the introduction of expensive technology. Staff will begin to argue that time is being wasted working out which box to tick when they send an email. If you avoid the technological route, you still need staff to spend time afterwards working out whether correspondence can be published. And imagine the capacity required on the web server…

My point is that whilst it’s great that public authorities are looking at ways to be more open, it’s important not to oversell what they’re doing. I don’t imagine that Harrow are contemplating publishing all emails for a moment. Yet that’s how most business is carried out in organisations across the country.

What they’re really talking about, I imagine, is publishing reports and policies to their website rather than their intranet as a default. There are already some organisations that take that approach, and I’d agree that it’s a welcome move and could have potential to save money. But don’t expect to see public authorities up and down the country rushing to publish the contents of their email inboxes.

Guest post – re-use of disclosed information

Emily Goodhand, Twitter’s @copyrightgirl, returns with her second guest post for FOI Man.

Re-using Public Sector information: what you need to know

There’s been a lot of interest and discussion around the government’s Open Government Licence and whether it covers information released under FOI. In short, it does not. The Open Government Licence (OGL) allows others to re-use information which has been made publicly available (i.e. on the public facing web) by a government authority so that individuals wishing to make use of this information do not constantly have to write for permission to do so. It is important to note that not all public authorities have adopted this licence, and that the licence only applies to works which have been published. Any information received by an applicant under FOI will not automatically fall under this licence, and therefore permission would have to be sought via a request to re-use this information before further use (including reprographic publication) could be made.

Why would a Public Sector Organisation be reluctant to apply an Open Government Licence to information released under FOI?

The OGL reads:

“You are free to:

copy, publish, distribute and transmit the Information;

adapt the Information;

exploit the Information commercially for example, by combining it with other Information, or by including it in your own product or application.”

The wide scope of this licence means that it is unlikely that public sector organisations will adopt it as a blanket licence to cover all of the information that they release under FOI.  It is more likely that a selective approach would be favoured, in that some information requested would be released under the licence at the point at which it is sent to the requester, but not all.  This would very much depend on the type of information being requested, which may not fall under an FOI exemption but may prejudice the organisation’s interests were it to be used for commercial purposes. West Middlesex University Hospital NHS Trust’s website provides some excellent examples of why a public sector organisation would not wish to release information under the OGL:

“Providing access to information does not give an automatic right to re-use it. Re-use can include publishing information or issuing copies to the public. Examples might be private sector companies wanting to re-publish our documents on their website as part of a commercial service, or wanting to publish our images in commercial publications.”

It is important to take these concerns into account in order to get a fair and balanced view of why, at times, a public sector organisation may not allow re-use of information in certain ways.

The Re-Use Regulations

Public sector information which is publicly available but is not released under the Open Government Licence is still subject to the terms laid out in the Re-Use of Public Sector Information Regulations of 2005. Information received under FOI from a public sector body is subject to these regulations with the following exceptions:

  1. The Regulations do not apply where a third party owns relevant intellectual property rights in the document (i.e. the document was written by an independent consultant who retained the copyright in the work)
  2. The Regulations do not apply to public service broadcasters and their subsidiaries, educational and research establishments, or cultural establishments

A request for re-use of information can be submitted to the remaining authorities who are not excepted from the regulations at the same time as an FOI request. The FOI request will be dealt with first, as re-use of information is impossible if access to that information is not granted. It is up to the institution as to whether it chooses to grant re-use of the information supplied, and it is entitled to make a charge for the re-use of the information. Complaints are handled by the Office of Public Sector Information, and more information about the re-use of public sector information is available from the National Archives.

Fair Dealing: what the Copyright Act allows you to do

The CDPA makes certain allowances for the use of work without the need to request permission to use it from the copyright holder. The main defence is fair dealing with a work for the purposes of: a) non-commercial research and private study; b) criticism and review; c) news reporting. It should be noted that photographs are specifically excluded from the fair dealing defence for the purposes of news reporting.

The emphasis in the Act is on the word “fair” – although it is not specifically defined, various case law has indicated that the work used must be no more than is necessary to make the point (i.e. an insubstantial amount) and must not have a detrimental economic impact on the original work. In addition to this, other factors also come into play, such as whether the work is published or unpublished, what the motive was for the dealing, and whether the purpose could have been achieved by different means. The defence, if relied on, should be used carefully, as one court found the copying of as little as 11 words to be copyright infringement. However, it is generally accepted that journalists can rely on this defence to re-use insubstantial portions of the information they receive as a result of an FOI request for the purposes of news reporting, with the exclusion of photographs.

Third parties and FOI

Journalist David Higgerson highlighted a case yesterday where the Department for Transport (DfT) had refused a request for detailed information about overcrowding on trains. The exemption applied was s.43 of the FOI Act, which can be used to protect information which would, or would be likely to, prejudice commercial interests.

First off, let’s give credit where its due – DfT should be congratulated on their openness in publishing all their responses to FOI requests online routinely. This probably wouldn’t have come to light if they didn’t do that. Not many public bodies (not even my own) take that approach. And I’d also say that whilst it’s not perfect in its wording, generally speaking, the response is actually pretty detailed and helpful notwithstanding the decision not to disclose all of the information.

But David draws attention to a serious issue. The key reason given by DfT was that the Train Operating Companies (TOCs) had refused permission for details of passenger numbers to be disclosed. DfT are putting together a new dataset which relies on the cooperation of the TOCs, so they were concerned that if they disclosed such data, the TOCs might not help with the new project.

This highlights a key problem for public bodies answering FOI requests. All information we hold is subject to FOI, but not all of it was created by us. In my experience, one of the most common reasons why exemptions are even considered is to avoid offending third parties. And sometimes third parties can be pretty aggressive in making clear that they don’t want the information that they supplied to be disclosed. Often, they just have no understanding of what FOI means for public bodies, even though they are usually informed in advance about the possibility of disclosure, and we try to explain the situation again when requests come in.

Public authorities need to get better at standing up to third parties. In my experience, some are too inclined to just accept the third party’s view that information should be withheld. Government departments in my experience are particularly prone to this. We have to remember that it is our decision in the end, and not the third party’s.

If the Government is serious about openness, it really needs to tackle the attitudes of the organisations that it does business with, especially amongst those private companies that provide services to the public. If they can’t be made to co-operate, they should be at least threatened with being brought under the auspices of FOI. Then they’d understand the situation much more clearly.

The most powerful third parties even attempt (and sometimes succeed) to change the law to avoid their information being disclosed. A few years ago, MPs fed up with their correspondence to local authorities being disclosed in response to FOI requests tried to enact an amendment to the legislation to specifically exempt any correspondence from MPs. Oh, and while they were at it, they tried to sneak in an exemption for both Houses of Parliament. Eventually that proposal was defeated, but only because once it had passed the Commons, their Lordships were too embarrassed to support it any further.

Yesterday, by Statutory Order (following the passing of the Constitutional Reform and Governance Act by the last Government), the FOI Act was amended to strengthen the exemption for Communications with the Royal Household (s.37). From now on, public authorities will be able to (and will no doubt be leant on to) use an absolute exemption (ie with no public interest test) to withhold correspondence between the Monarch, the Heir and the second in line to the throne and themselves. So in future nobody will be able to find out if the Prince of Wales is seeking to influence planning decisions or the design of hospitals. This only came about, I suspect, because some public bodies felt that there was a public interest in disclosing such correspondence in the past, and pointed out that in this circumstance, they had to disclose the correspondence. That won’t have been happily received.

Some third parties can be very powerful indeed.

What are FOI Officers for?

I’ve been meaning to write this post for some time, but there’s always been something topical getting in the way. But as the data deluge begins to subside (?), here are my observations on the role of FOI Officers in the UK.

When FOI was passed (and I am dismayed to recall that I missed the FOI Act’s 10th birthday on 30th November), public authorities preparing for its impact had little to go on. Each authority came up with its own way of handling requests or alternatively, failed to, and reaped the consequences in January 2005. As a result, each public authority has its own way of processing FOI requests, and each FOI Officer has a different job.

In one organisation I’ve worked in, the FOI Officer is very much an advisor – they only get involved in the answering of individual requests if there are concerns about disclosing information. Most requests are answered by staff working on the subject area of the request. My impression is that this is characteristic of central government’s handling of FOI requests (generalising broadly). In these bodies, the person answering your request may well not know very much about the Act (so may use the wrong terminology/make odd statements about their obligations under the Act), but should be knowledgeable about the subject that is being asked about.

In other organisations, including my current one, the FOI Officer receives, acknowledges and responds to the request. Departments are asked to provide relevant information, and advise if they have any concerns with the information being disclosed (I wrote about this process in more detail in my post Being Human last month). This is probably characteristic of FOI procedures in sectors outside central government (again, generalising – many may not). This is an approach probably favoured additionally by smaller organisations.

As well as differences in the way that FOI requests are processed, there are also variations in attitude and approach amongst practitioners. There isn’t a single FOI Officer profession – we’re a range of individuals, with different backgrounds, skills and attitudes. There isn’t a professional body for FOI Officers – though the Records Management Society (RMS) recently became the Information and Records Management Society (IRMS), partly I suspect in an attempt to fill this vacuum (logical, since many FOI Officers started out as Records Managers, and the Section 46 Code of Practice makes the link clear).

Often we have many other responsibilities in addition to FOI. Commonly this includes records management and Data Protection Act compliance (with significant workloads attached to both) but often very many other duties as well.

This means that there is no single understanding of what an FOI Officer is for. Some, I’m sure, see their role as to do as they’re told – if they’re told to withhold information by a senior officer, then they find a way to do so, no matter how weak the basis. And who can blame them? I know of one FOI Officer who was casually threatened with redundancy for themselves and a junior colleague if they couldn’t be “more helpful” (for which read “find ways to avoid answering uncomfortable requests”).

A few FOI Officers, I believe, take common cause with the FOI critics in their organisation and set out, in their view, to defend their employer. Without much persuasion, they will seek out ways to thwart requesters. They will complain loudly about ‘abuse’ and ‘misuse’ (sometimes justifiably, but perhaps on occasion not) of the legislation. Their advice and decisions may not be based on available case law, but on their own view of what is reasonable. They will shout loudly – and in fairness, correctly – that the Information Commissioner’s decisions do not set precedent.

Then there are those that take the view that they are there to challenge the status quo, to promote the principles underlying the legislation. In practice, this means not just accepting it when a colleague or a manager asks them to find an exemption to apply, but asking the difficult questions. Why can’t it go out? What harm will result? How likely is that harm? Will it really cost this much to provide the information? This approach is strongly influenced by the decisions of the Information Commissioner, Tribunal and higher courts.

In my view, this is the right approach, however unpopular it may be with managers and colleagues. There is, after all, a statutory presumption (Environmental Information Regulations) or assumption (FOI, as established through case law) to disclose, and in my experience it is often difficult for those closest to information to take an approach consistent with that. The FOI Officer is there to make that assumption or presumption for the public authority. They might ultimately decide that it is right to withhold the information, or they may be overruled, but they have to ask the questions.

In truth, of course, we’re all on a scale covering all of those approaches. I certainly recognise myself in all three scenarios. It’s not wrong of FOI Officers to seek to defend their employer, but we do that better by minimising the risk of referral to the Commissioner, or at least increasing the likelihood of the Commissioner upholding the decision made. I’d also argue that by basing our approach around case law and available guidance, FOI Officers will be seen to be professional, even if they don’t belong to a profession.