Tag Archive for Freedom of Information Act

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.

 

FOI Dependencies

FOIMan highlights forthcoming new FOI laws in Crown Dependencies.

Jersey Police patch

Soon you’ll be able to request information about Jim Bergerac’s investigations

There are states very near our shores here in the UK that have yet to implement a Freedom of Information Act. A couple of those – Jersey in the Channel Islands and the Isle of Man – are in the process of putting that right.

First, a little bit of constitutional detail. Contrary to what many may think, these states are not part of the United Kingdom. They are closely related as they share our Head of State (I rather like the fact that according to Wikipedia – only the best sources for this blog – the Queen in fact rules Jersey in her capacity as Duke of Normandy, and hope I won’t be corrected on that).

So if they are to be subject to FOI laws, they need to enact their own legislation. The State of Jersey has already done so. Their Act was passed in 2011, and it is planned that it will come into force at the start of 2015. Perhaps surprisingly, it is already being amended – to strengthen the ability of the Jersey authorities to refuse requests on cost grounds and to allow Jersey’s highest court to overturn decisions of the Jersey Information Commissioner. One of the features that stands out to me about the 2011 law is the requirement at s.7 to prepare an index of information that is held – there is a real emphasis on records management in this legislation. How effectively that provision has been implemented will be something to watch out for in 2015.

Meanwhile, the Isle of Man government has just completed a consultation on a new Freedom of Information Bill. The Isle has had a Code of Practice on Access to Information in place for some time, which appears to have been successful in developing transparency on the island. The new Bill is badged as merely formalising existing arrangements and bringing them into line with nearby territories.

As the Jersey amendment highlights, the greatest concerns of those introducing new FOI legislation are around the cost. It is understandable that any government about to impose significant new obligations on itself will hold concerns about the cost of implementation. As the UK experience has shown, until FOI is in force, it is difficult to be sure what the impact will be. And as we know, the UK government is itself about to consult on potential amendments to FOI cost limits. Let’s hope these fears don’t lead to these fledgeling openness laws having their wings clipped from the start.

Photograph by Dave Conner [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.