Tag Archive for Freedom of Information Act

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.

Parish Councils and FOI

FOIMan writes about recent research on FOI and parish councils in England and Wales and considers what lessons it provides about FOI in general.

freedom-of-information-graphic-smallWe all have our own preconceptions about FOI, but when it comes to convincing the decision makers, having good solid evidence from academic research has proved invaluable. Both the recent FOI Commission and the post-legislative scrutiny conducted in 2012 were swayed by this kind of evidence – in many ways it could be said to have saved FOI. Thankfully, neither the Commission nor the Justice Select Committee had had enough of experts.

Probably the most prolific of academic researchers into the UK’s FOI legislation and its impact has been Dr. Ben Worthy, formerly of UCL’s Constitution Unit, and now lecturing at the University of London’s Birkbeck College. Previously he has turned his attention to central government, local government, the Houses of Parliament and universities. Together with academic colleagues he recently turned to parish councils.

The findings of his research are not particularly surprising, but are helpful nonetheless in understanding the peculiar challenges that FOI presents within the lowest tier of government. In my view it also provides some important lessons about FOI and government in general. In particular:

  • lack of resources inevitably leads to poor FOI compliance
  • awareness of FOI and other legal obligations is low in small, poorly resourced public bodies
  • stating that your request is an FOI request will improve your chances of getting a response
  • devolution doesn’t always help improve public services, at least if FOI is anything to go by.

You can read the research paper yourself if you want, or if you prefer a shorter summary, my latest article for PDP’s Freedom of Information Journal provides just that and also adds some colour with some decisions of the Commissioner and Tribunals that provide anecdotal support for its findings. In addition, Ben himself wrote a blogpost summarising the research earlier in the year.

Incidentally, if you enjoy my piece on parish councils, I’ve added a new page to the resources section of the FOIMan site where you can access all my articles for the FOI Journal and for other publications besides. Keep checking back as there will be further articles to come later this year.

Ten years of FOI – a personal reflection

FOIMan reflects on ten years of FOI in his latest article for PDP’s Freedom of Information Journal.

Simon Hughes MP on a panel with the Information Commissioner and others at the ICO's recent event celebrating 10 years of FOI

Simon Hughes MP on a panel with the Information Commissioner and others at the ICO’s recent event celebrating 10 years of FOI

Happy new year. Like many others I return to work today after an extended Christmas break, refreshed and ready for the year ahead (at least in theory). Ten years ago it was much the same, but for the first time, I was fielding FOI requests.

As you’d expect, the arrival of the tenth anniversary of the right of access has seen a range of pieces celebrating this important milestone. The Information Commissioner, Christopher Graham,  highlighted five landmark decisions. The Campaign for Freedom of Information emphasised some of the achievements of FOI whilst warning that increasing use of private companies to deliver public services is undermining accountability. Even the Minister for FOI, Simon Hughes MP, has issued a press release to celebrate the first decade of the right to know. Journalists including the BBC’s Martin Rosenbaum and David Higgerson have marked the occasion.

All good pieces and worth a read. But what was the experience of those on the inside over the last ten years? The FOI Officers and others who were responsible for making sure their organisations answered the requests that started to pour in from January 2005 onwards? Well, I can’t speak for others, but here are my reflections, recently published in PDP’s Freedom of Information Journal.

FOI in Court

FOIMan lists court cases that have considered the Freedom of Information Act and Environmental Information Regulations.

Supreme Court building

The UK Supreme Court

You may have noticed that sometimes the decisions of the Information Commissioner and the First-Tier Tribunal (Information Rights – FTT) are a little inconsistent: between the Commissioner and the Tribunal, between different Tribunals, and sometimes even between different decisions of the Commissioner. This isn’t that surprising because in our system of law, the decisions of the Commissioner and FTT do not set precedent.

Precedent is a really important concept in English and UK law. Once a precedent is set, lower courts and decision makers must follow it unless the Government brings in legislation to change the ground rules. So decisions about FOI and the Environmental Information Regulations (EIR) made by the Upper Tribunal (and prior to that Tribunal being established, the High Court), the Court of Appeal, and the Supreme Court are really important in establishing how the legislation should be applied by public bodies.

It’s reasonably easy to locate decisions of the Commissioner and FTT. The Commissioner’s decisions are published on his website. The FTT’s are published on its site (though this is sometimes difficult to locate without a handy link). Court decisions can be found on the excellent BAILII site, but have to be searched for amongst lots of other case law.

In an attempt to make things easier for you (and for me) I’ve put together a page here at FOIMan.com which lists precedent-setting decisions. It’s not exhaustive, but I hope I’ve listed some of the important cases, and I’ll continue to update the list. What’s hopefully most useful is that I’ve sorted the list by section of the Act/Regulations. If you want me to add a case to the list, please do send me the link and I’ll add it for everybody’s benefit.

Photo by Rob Young from United Kingdom (Middlesex Guildhall, The Supreme Court, London) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.

 

The mystery of the disappearing immigration stats

FOIMan probes the refusal of a request for immigration statistics by the Home Office – and finds they haven’t always been so cautious.

A docked ferry at Dover

A docked ferry at Dover

Earlier this afternoon I was asked if I would agree to being interviewed on BBC Radio Kent about the refusal of a request they had made to the Home Office. Not wishing to sound a complete dunce, I did a little digging around and was quite surprised at what I found.

The BBC had asked the Home Office for the numbers of illegal immigrants that had been detained seeking to enter the UK via the port of Dover in Kent in each of the last 5 years. A month late, it should be said, they received a response refusing the request, citing the exemption at s.31(1)(e) – if disclosure would, or would be likely to, prejudice the operation of immigration controls. BBC Kent sent me a copy of the response to see what I thought of it.

Well, for a start, it failed to set out the exemption correctly – for example, failing to say how likely the prejudice is. With exemptions formulated as “would, or would be likely to”, the Commissioner and Tribunal expect public authorities to say which of those applies. The nature of the prejudice claimed was only explained as part of the public interest test, presented in an annex.

The Home Office fears that if it disclosed these figures, and then other requests were made for the same statistics in relation to other UK entry points, this could be used to establish the weak points in the border. It’s the classic “jigsaw request” argument – that the prejudice might occur through the piecing together of data from different sources.

In all honesty, my initial reaction was one of scepticism. But I checked the Information Commissioner’s decisions to see if the ICO had looked at any similar requests. Sure enough, I found that last year a request for similar details relating to Glasgow Airport had been refused on similar grounds. It’s difficult to be sure without having seen the response, but there are suggestions in the Decision Notice that the same mistakes were made in applying the exemption then (which begs the question as to why the Home Office don’t appear to have learnt anything since then). Despite this, the Commissioner upheld the use of the exemption. Fair enough, I thought, he’s obviously been persuaded by the Home Office’s arguments, and ICO investigators are quite likely to have been party to more background detail than I am. So I was all ready to tell BBC Kent that it looked like they were out of luck.

But then I tried TheyWorkForYou.com – the sister site to WhatDoTheyKnow.com that provides ready access to responses to MPs’ questions in Parliament. And up came a response given by Damien Green, the then Minister for Immigration in the Home Office, provided to Dover MP Charlie Elphicke in 2011. In response to an almost identical question to that asked by BBC Kent, the Minister provided the statistics for 2008-09, 2009-10 and 2010-11.

So the real question is – what’s changed between 2011 and 2014 to make the Home Office suddenly so reticent about disclosing these figures? I wonder if the ICO were aware of this when they made their decision in relation to Glasgow Airport.

Photograph by Robin Drayton [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons.