Tag Archive for FOI

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).

FOI in English Local Authorities in 2016

FOIMan summarises the results of research into the numbers of FOI requests that local authorities in England received in 2016.

The new s.45 code of practice requires all public authorities to publish data on their FOI performance, but that hasn’t always been required. Outside of central government, the availability of reliable data on FOI request volumes is patchy to say the least.

Local government is reputed to receive the most FOI requests of all public authorities. Between 2005 and 2011, the Constitution Unit at UCL carried out valuable research into FOI in local government, including request volumes. The reports on their research can be found on the UCL website.

Since the 2011 report (on 2010), there hasn’t been any comprehensive data available on FOI volumes in local government in England (to my knowledge). As regular readers will know, I conducted some research into FOI in local government as part of the preparation for my book The Freedom of Information Officer’s Handbook. In Autumn 2017, I wrote to a sample of councils across the country and asked them a number of questions. Amongst those questions I asked for the number of requests received in 2016 and the number of those requests answered in 20 working days.

In my latest article for the Freedom of Information Journal I have reported on the results of these questions, and compared them to UCL’s research to examine the trends in council request volumes. It will come as no surprise to learn that request volumes appear to have continued to rise over that period.

If you want to read more about the outcomes of my research, other aspects (including how requests are managed and how performance is monitored) are explored in detail in The Freedom of Information Officer’s Handbook which will be published at the beginning of January 2019 by Facet Publishing. Details of how to order a copy at a discount can be found at the top of the sidebar opposite.

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.

Caught in limbo

FOIMan finds that the absence of a Northern Ireland government is having unforeseen consequences for FOI applicants.

Stormont

Stormont, home of the Northern Ireland Assembly © Paul Gibbons 2018

There are no doubt times when many of us think we’d be better off without politicians – you could be forgiven if now was one of those times. We should be careful what we wish for.

In Northern Ireland, there have been no ministers in government since the late Martin McGuinness resigned as Deputy First Minister in January of last year. Most people would probably assume that this doesn’t have a significant effect on the day-to-day running of government departments whether they be in Westminster or Belfast. Civil servants can keep things running. But perhaps surprisingly, many quite crucial but low level decisions cannot be taken without at least the signature of a minister. For example, on visits to Belfast to deliver training in the last year, I’ve heard taxi drivers grumble about delays to road improvements simply because there is no minister to give the nod to proposed schemes. There will be lots of quite simple matters that most of us take for granted that are not happening in Northern Ireland simply because there’s no one to approve them. And FOI administration is amongst the areas to be hit.

One example of this is when someone requests access to a record that has been transferred to the Public Record Office of Northern Ireland (PRONI). If exemptions apply to the information concerned, according to s.66(2) of FOIA, it is up to the relevant Northern Ireland minister to decide who should be consulted in the department that transferred the records (as in, which other minister). Since there is no minister to decide (or indeed to consult) there is a problem. In a batch of decisions issued last month, the Information Commissioner wrestled with this conundrum and concluded that whilst the Northern Ireland department that is responsible for PRONI is clearly in breach of FOIA for not responding within 20 working days, the Commissioner cannot make the department do anything since they don’t have a minister. Those making requests for transferred information in Northern Ireland are effectively losing their rights because there is no minister.

It works the other way too. If Northern Ireland government departments want to withhold information relating to policy making, they are generally able to rely on s.35(1)(a), the exemption covering the formulation or development of government policy. However, if that or other exemptions don’t apply, they would want to rely on the exemption at s.36(2)(c), which only applies if the authority’s qualified person provides an opinion that disclosure would or would be likely to prejudice the effective conduct of public affairs. In Northern Ireland’s government departments, the qualified person is, as it is in Westminster departments, a minister. So they are currently unable to use the ‘safety net’ exemption in FOIA. How ironic that Northern Ireland’s government departments find themselves stuck for a backstop.

In practice of course, this is likely to impact on applicants in the form of considerable delays in responses to their requests.

It turns out that not having a minister is a bit of a problem for anyone who wants to make, or is tasked with answering, an FOI request.

References:

ICO decision FS50696780

ICO decision FS50696778

ICO decision FS50696776

 

FOI and diaries – long read

FOIMan’s latest article for PDP’s Freedom of Information Journal explores how requests for diaries of public officials should be handled.

A few weeks ago I wrote a blog post about FOI and diaries in response to an article in the Guardian. Coincidentally I had just written a piece for PDP on the same subject and I promised to publish it here when it was published.

As promised then, here is my latest piece for PDP’s Freedom of Information Journal, on FOI and diaries.