Tag Archive for Freedom of Information

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.

Keeping a diary (secret)

FOIMan explains that it can be difficult to keep an official’s diary secret under FOI.

The Guardian yesterday reported on the outcome of an FOI request that it made to the (then) Department for Communities and Local Government (DCLG) for minister James Wharton’s diary in 2016. The diary eventually saw the light of day after the First-Tier Tribunal ordered its disclosure.

I’ve previously written here about my experience with a request for the Mayor of London’s diary way back in 2006. On that occasion, one of the Mayor’s officials had accidentally disclosed the entire Mayoral diary to a national newspaper, complete with details of the Mayor’s fitness and cosmetic routines.

My next piece for PDP’s Freedom of Information Journal, to be published next month, coincidentally covers the subject of FOI and diaries in depth. For the meantime, however, here’s a brief summary of the arguments that public authorities often make in relation to officials’ diaries and their likely success.

The information is personal data (s.40(2)): private information, such as Mr Livingstone’s hair and fitness regime, but also his home address can be redacted, justified using s.40(2). This will also be relevant for names of some people that the official meets with where it would be unfair to disclose them (e.g. junior officials, members of the public, etc.). However, it’s unlikely to be unfair to disclose meetings of MPs with Ministers, say.

The information is not held: if it is recorded in the diary, it is held – it doesn’t matter what it relates to, or when the event took place (see my previous post on the Lansley diary for more discussion of this point).

It would cost too much to disclose the diary: it is difficult to argue that s.12 (the cost limit) applies if the applicant just wants the whole diary, though it might be relevant if they are asking for certain types of extract, since this will involve locating and extracting the information. Section 14(1) – the vexatious provision – might be relevant if the applicant has asked for a diary covering a long period of time, if it can be shown that officials would have to spend a vast amount of time identifying and redacting entries from amongst the diary content.

The content relates to policy formulation/running of a ministerial office (s.35): only relevant to central government. Hard to argue that a ministerial diary does not relate to running of a ministerial office, and there will certainly be entries that relate to the formulation and development of policy, but harder to make the case that the public interest favours withholding what is usually fairly anodyne stuff. (‘meeting with officials about BREXIT’ for example would hardly be a surprising entry to find in a minister’s diary at present and doesn’t really tell the public much that could be construed as damaging.)

Disclosure would prejudice the effective conduct of public affairs/inhibit free and frank advice (s.36): in practice not very successful in decisions reached by the Commissioner and tribunals for similar reasons to s.35.

National security concerns (ss.23/24): information about a public figure’s location at particular times may well put them at risk.

Information is already published or will be published (s.21/s.22): frankly, this is public authorities’ best option. Adopting a routine schedule of publishing the diary of a prominent official (especially if they know there is interest in this record) means that s.21 (otherwise accessible) can be applied to details already published, and that s.22 (future publication) can usually be used in relation to parts of the diary yet to be made available. As is so often the case, adopting a pro-active rather than reactive approach to this information is of benefit to public authorities. Whilst it means that the bulk of a ministerial diary, say, will end up in the public domain, and that officials will have to carry out work to prepare it, it does allow them to retain a degree of control over what is published and when. It is also going to be easier for officials to prepare the diary to their own timetable than under the pressure of an FOI request deadline. Information that is legitimately exempt under other exemptions can, of course, still be redacted.

Watch out for my PDP article on diaries and FOI, which I’ll publish here in a month or so, and which goes into more detail on all this (including examples).

New infographics resource

FOIMan launches a new resource – FOIMan Infographics – with a timeline summarising the history of freedom of information.

TimelineI’m always looking for new ways to communicate about information rights. With the government once again reviewing the Freedom of Information Act and a new data protection law round the corner, the more ways there are for people to understand the implications of any changes the better.

Infographics are a brilliant way to simply illustrate facts. Anyone who is familiar with David McCandless’s Information is Beautiful will know that they have become an art form. More recently, the Human Rights Act – also under threat at present – has benefitted from the wonderful RightsInfo site and its fabulous use of graphics to get over complex ideas in a simple and effective way.

Today I’m launching a new Infographics page in the Resource section of the FOIMan site where you’ll be able to download graphics that I’ve published. I’ll also blog whenever a new graphic is available. I can’t hope that my efforts here will be as successful as the examples you’ll see at RightsInfo which are designed by professional graphic designers. But my hope is that they will help to communicate some key ideas and maybe even inspire others with better skills and resources to develop their own. You can see the first in this series on the left of this page and do go to the Infographics page where you can download the full size version in two different formats.

And please do use these graphics – re-use them for campaigning, on social media and elsewhere – that’s what they’re for. If you want to use them for commercial purposes (unlikely!) please ask – but otherwise just use them. Just make sure that you acknowledge me and if possible provide a link to this website.

New FOI Media Masterclass Launches

FOIMan announces the launch of an exciting new Masterclass in FOI for journalists and the media.

Flyer for Media MasterclassI’m very excited to announce a new collaboration between FOIMan and the creator of FOI Directory, journalist Matt Burgess.

Matt’s new book Freedom of Information: a practical guide for UK journalists will be published later this month (and is available for pre-order). As well as being a thoroughly nice chap, he is extremely knowledgeable about how the media and others can get the most out of FOI. With this in mind, I’ve asked Matt to collaborate with me in developing a new Masterclass for the media.

Matt and I will share the delivery of the Masterclass. We hope that bringing together the experience and knowledge of a former practitioner with that of an active journalist will result in a unique learning experience for journalists and other writers who want to use FOI to great effect.

If you’re interested in attending the first Masterclass, we’re holding it in London on 30 October – full details and a booking form can be found on the FOI Media Masterclass page. A flyer is also available for download.

Why the transparency backlash must be fought

FOIMan fears a backlash against FOI and transparency in the UK – and highlights arguments over their value in the US.

Sunrise or sunset for transparency?

Sunrise or sunset for transparency?

One of my fears following the election of a Conservative majority government earlier this month is that it may herald a backlash against FOI in the UK. My Act Now Training colleague, Ibrahim Hasan, has written a really good post outlining what changes may be in the offing under this government. Fans of transparency have reason to be pessimistic.

The Prime Minister has gone on record with his criticisms of FOI. Most recently, he expressed a desire to The Times to:

…declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FOI…

I’ve written previously of my suspicions that Simon Hughes, the former Liberal Democrat Justice minister, had opposed attempts by Conservative colleagues to make it easier to refuse requests on grounds of cost. That defence is now gone. The new Justice Secretary, Michael Gove, is unlikely to be enamoured of FOI given his previous experiences.

This antipathy at the top will be encouraged by others who are sceptical of FOI’s value. Given how readily the government was moved to strengthen the exemption protecting correspondence with the monarch and her heirs, Clarence House and the Royal Household will feel able to push for more control following the release of Prince Charles’ correspondence. The Local Government Association will issue more press releases about dragon attacks, exorcisms and asteroids. Universities UK will argue once more that higher education institutions ought not to be covered by FOI. Businesses and charities in receipt of public funding will express a sigh of relief that Labour’s plans to extend FOI to them will not happen.

A reaction against FOI will not be unique to the UK. Other countries are experiencing a backlash against their transparency achievements. Alasdair Roberts, an academic who has been studying FOI in Canada and the US for decades, has written a fascinating paper which seeks to refute criticisms of transparency in the US.

The US critics argue that transparency has become a knee-jerk reaction to any perceived problem in society, but that often it creates more problems, making government and institutions less effective. Roberts’ response addresses these criticisms directly with three arguments.

Firstly these writers tend to conflate several forms of transparency. For example, requirements on certain sectors and services to publish performance indicators actually help governments achieve their goals, and ought to be distinguished from accountability requirements on the government such as FOI. Not all transparency has the same aims or results.

Secondly he argues that when there is a crisis, transparency is not the first reaction of the public or politicians. Instead the initial response tends to be to enhance control over events. Calls for transparency tend in fact to be the result of expansions of executive and bureaucratic power. So in the 1960s and 1970s there was a big increase in executive power in the US which in turn led to more calls for transparency – resulting in the US FOI Act and similar legislation. It is possible to see parallels with the rise of “presidential-style” government in the UK especially under Margaret Thatcher and Tony Blair, and for example, executive politicians in local government, resulting in our FOI Act and other openness rules.

Thirdly what Roberts argues is that when we see calls for more transparency, it is not because people want to know more about the institutions that are already relatively open to them; it is usually because the way things are done has changed and therefore more transparency is required in order to maintain the same level of openness as before. We have seen this in the UK with the outsourcing of public services which in turn has led to calls for FOI to be extended.

Roberts finishes by making an important point, as valid in the UK now as in the US and elsewhere. Transparency and FOI critics want advocates to accept the status quo. But change in government and administration is constant. If transparency isn’t similarly adjusted, it will naturally erode. To preserve our right of access we must fight, not just for what we have, but for more. If we fail to do this, we will soon find ourselves in the dark just by standing still.