Tag Archive for Politics

How safe is FOI?

FOIMan reviews the state of FOI in the UK at the end of the last party conference season before the 2015 General Election.

House of Commons

House of Commons

It seems like only yesterday that I coined the hashtag #saveFOI when, provoked by the launch of the government’s post-legislative scrutiny, it seemed that everybody and their uncle wanted to pile in with their FOI horror stories. And a few months later I was – largely – relieved to find that despite the naysayers, the Justice Select Committee had recommended few changes to the Act. Indeed they had focused on its achievement as “a significant enhancement of our democracy”.

The attacks, of course, have not gone away. Whether it be dragons or criminals attempting to give bananas the slip, some public authorities have been keen to bring FOI into disrepute. Their hope is that these stories will make it politically acceptable for the government to weaken our right to know.

And these are dangerous times for constitutional rights, of which I count FOI as one. We’ve seen that the Conservative Party is keen to dismantle the current human rights infrastructure, apparently because the government hasn’t got its way over one or two decisions made by the European Court of Human Rights. If human rights aren’t safe, it’s a fair question to ask if other rights – less complicated to remove or weaken – will also come under renewed attack. And from whom?

The most pressing threat is the possibility that the government might – as it proposed to do in its response to the post-legislative scrutiny – amend the FOI fees regulations to make it easier to refuse requests. However, a recent interview with the Minister for FOI, Liberal Democrat Simon Hughes, appears to suggest that the threat has been stayed somewhat. Mr Hughes indicated that a consultation on this is likely before the 2015 election, but actual changes were unlikely until after then. It appeared from the interview that the two parties in government were failing even to agree on the content of the consultation. So even that is in doubt.

Another significant threat is the failure to properly fund the Information Commissioner’s Office. As I’ve previously highlighted, Christopher Graham himself has indicated that FOI enforcement is at risk without a new settlement. The ideal solution would be to find a way to independently fund the Commissioner’s work, rather than him having to go cap in hand to a government department that he often has to rule against.

It is entirely possible that a new government next May could find other ways to undermine FOI. As the last party conference season before the general election has come to its conclusion, what can we say about how safe – or otherwise – our right to know will be next year?

First of all, it’s not unreasonable to be sceptical about any of the parties that are likely to form a government next year. At various points they have all exhibited ambiguous attitudes to the legislation, especially when in government. But I do think we can draw some conclusions. Let’s take each of the main parties in turn.

The Labour Party, of course, introduced the Freedom of Information Act whilst in power. But famously the Prime Minister of the time has expressed his regret, believing it (with the ban on fox hunting) to be one of his two worst decisions. It’s been repeated enough now for us not to choke on our tea with the irony. However, the current Shadow Justice Secretary, Sadiq Khan, has made several positive noises about FOI, including vowing that it will be extended to private companies that provide public services – a promise repeated during the Labour Party Conference in September. This doesn’t mean that a Labour government with a healthy majority won’t lose its enthusiasm for the right to know once in power, but at least Mr Khan appears to be proud of his party’s part in the story of FOI rather than considering himself to be a nincompoop.

Simon Hughes’ conference speech this week claimed that the Liberal Democrats were trying to extend FOI now. His speech, as well as the interview with Martin Rosenbaum mentioned above, hints that the junior party in the current coalition has protected FOI from their partners in government. In this context it is worth noting that many observers were surprised at the relatively positive conclusion to the post-legislative scrutiny. It seems plausible that this was as a result of the canny chairmanship of Sir Alan Beith, a Liberal Democrat. My sense is that broadly speaking FOI is safest with Liberal Democrat involvement in government.

What about the Conservatives? They don’t appear to have said much at their conference on the subject. But in the past their leader has expressed his irritation with FOIs “furring up the arteries” of government. His idea of “real FOI” is government deciding what you should be allowed to see. That phrase was echoed last week when the Conservatives talked about “real human rights”. Not all Conservatives are enemies of FOI though. Eric Pickles has criticised local authorities who moan about their FOI obligations. Overall though – and looking back at the evidence given to the post-legislative scrutiny in 2012, and the MPs who appeared most skeptical – I don’t sense much enthusiasm for FOI in the Conservative Party (aside from when they were out of power when they used it enthusiastically, of course).

So there we are. It would appear that FOI would be safest with Labour or the Liberal Democrats (and most safe with both). Of course, we’ll know more when party manifestos are issued early next year. Maybe the Conservatives will prove me wrong by offering to protect and extend FOI in the next Parliament.

GoveGate and FOI Avoidance

FOI Man thinks the Information Commissioner must be seen to carry out a thorough investigation into claims that Michael Gove’s Department for Education tried to avoid FOI disclosures by using private email accounts

The Financial Times, followed by various other news outlets, ran a story this morning about Michael Gove’s Department for Education. The story revolved around an email sent by a Special Adviser which included the following statement:

“i will only answer things that come from gmail accounts from people who i know who they are. i suggest that you do the same in general but thats obv up to you guys – i can explain in person the reason for this…”

Leaving aside the poor grammar at the top of the DfE, the suggestion is that this was being done to avoid FOI. That routinely, the Education Secretary and his closest advisers were carrying on Government business on private email so that it couldn’t be found when FOI requests were received.

This is a serious allegation. In my view the most serious offence in the FOI book (morally if not legally). It’s one thing to refuse requests using exemptions approved by Parliament. It’s quite another to stick two fingers up to Parliament and the electorate by choosing to work in a way that prevents information being discovered when requested.

As others have pointed out, section 3(2) of FOI means that it doesn’t matter how you carry out government business, it will still be subject to FOI. But of course, if business is being carried out on GMail or some other private email account, the individual has to be trusted to disclose all relevant emails when they are asked for them by an FOI Officer. If they’re away from the office, their colleagues will not know about them. And if automated searches are used to locate emails relevant to requests, they of course won’t pick up emails held outside the system.

The DfE have argued that the emails related to Conservative Party business. If so, then technically there is nothing wrong with what they are doing. But the flip side of s.3(2) is that even if such business was carried out on DfE accounts, it would not be subject to FOI. So there’s really no need for it to be carried out using separate email addresses. In fact, many might well take the view that it isn’t a good idea – aside from the risk of somebody concluding that you might be trying to hide something, there are also potential security risks connected with using private email accounts which are not generally subject to the same levels of encrypytion as Government email accounts.

It has been suggested elsewhere that the s.77 offence of seeking to destroy or hide requested information will not apply in this case because the alleged attempt to conceal information was routine, not in response to an FOI request. I wouldn’t be so sure. If anyone using a private email address has ever told an FOI Officer who asked for information that they didn’t hold it, and it was held in their private account, this would fit s.77 in my view. The difficulty would be proving intent. You would have to prove not only that they had relevant emails in their account, but that they had known that they had, and had known that technically they were subject to FOI. That’s quite a lot to prove.

This case goes to the heart of public suspicion of FOI practice in Government and beyond. The Information Commissioner must be seen to carry out a rigorous investigation – otherwise the suspicion will remain that FOI can be easily sidestepped when inconvenient.

If you want to read a further analysis of this story, I recommend Jonathan Baines’ (@bainesy1969) post from earlier today.

What’s wrong with FOI?

FOI Man makes the case for and against FOI and more transparency – what do you think?

It’s very easy for an FOI Officer to find fault with FOI. But hopefully regular readers will have picked up by now that I support FOI and moves towards openness in the public sector.

Unlike some, I don’t have any beef with particular groups who use FOI. Let’s look at the usual suspects.

Of course businesses use it to draw up contact lists for marketing, or to build databases which they will then sell at profit. It’s their right, and those who promote FOI in Government think this is a “good thing”. It is a mechanism that allows information collected or created at public expense to stimulate the economy. It is a strong justification of FOI in a largely market-based economy. It is why Conservative, as much as Liberal Democrat and Labour supporters, feel able to support openness initiatives.

Students use it to research their degree projects. So what? It’s good that they have the nous to use a facility such as FOI. We only have to provide what we have and if the cost is excessive we have an answer to that. It’s frankly not true that, as some would have it, we have to do their work for them – if information is publicly available to them, we just have to point them in the right direction and if necessary cite the exemption for information that is otherwise accessible.

It’s a good thing that journalists use FOI. I’d rather see stories based on evidence that I’ve helped provide than see badly researched sensationalism in the papers. Surely I’m not the only FOI Officer that gets a buzz when I see something I’ve provided mentioned in the Press? I sympathise with those who have become jaded because of the attitude of some (not all, or even most) journalists, and the way that some disclosures have been presented, but the answer is to remain positive and open, not to become defensive. Otherwise we just reinforce negative attitudes to the public sector in the media.

Users of WhatDoTheyKnow are using a service to make requests. It’s marginally easier to make a request using it than sending an email. Some will abuse that ease, but that’s going to happen with any route made available. And by engaging with those who work for and with WDTK, we have an opportunity to encourage responsible behaviour amongst requesters.

My point is that we can’t have a right and then quibble about who’s “allowed” to use it. And FOI is an important right. Whether we like it or not, it has become an internationally recognised badge of a free and democratic society. It’s as much about demonstrating our aspirations as a modern and progressive country as it is about accountability and transparency. This is one reason that I was disappointed by Tony Blair’s admittance in his autobiography that he considered FOI a mistake. If that’s true, that’s not only hindsight, but also short sight.

That said, of course, it’s very easy for supporters and users of FOI to become blinkered. One of the vaguely articulated aims of this blog is to demonstrate the impact that the legislation, and people’s use of it, has on public authorities and the services that they provide. It is neither perfect nor pain-free. And maintaining it, somewhere down the line, means choosing between FOI and provision of other services.

I’ve said previously that I am irritated by statements such as “it’s our information”. Aside from the fact that it is legally inaccurate, it is hopelessly impractical. Information is collected by public bodies so that they can provide the services that some or all of us rely on. Often, the provision of those services will be compatible with, and may even be served by, disclosure of the collected information to the public. But on occasion, it just isn’t possible, and it wouldn’t be in our interests (as a society) to do so. It’s not that I view Government as always benevolent and paternal, or take a view that we should accept what we’re given without question. But I do accept that at least some of the time, things work better without me or others knowing every last detail. If only because the physical means of disseminating that level of information will get in the way of the provision of essential services.

If FOI and other transparency initiatives are going to work, they have to be managed as a process. That means, I’m afraid, refusing requests that will cost too much. Recognising that some people do abuse the privilege and turning them away. And using exemptions where we have concerns over the impact of disclosure of certain information. It means thinking carefully about the resource implications (I know, dirty words in the public sector at the moment) of more transparency. I think it also means looking at how transparency and FOI can contribute to the wider aims of the public sector. It has to be more obvious to public servants what the point of openness is, beyond satisfying curiosity. Can it help us make the savings expected of us? Are there ways that it can be built into our processes to make them more (and not less) effective? What are the wider benefits to our society?

So what do you think? Do you have any ideas about the future of FOI and how it can be made to work better? I’m particularly interested in hearing your constructive comments on FOI and transparency (rather than the knee-jerk reactions that we’re all prone to when we feel very strongly about something). Let me know by commenting here, or via Twitter (@foimanuk).

The rhetoric of jealousy – politics and pensions

FOI Man argues that the rhetoric of jealousy in discussions of pension reform isn’t helpful.

I appreciate that this subject is slightly off-topic for a blog about FOI, but of course FOI Officers are all public employees, so there is a tangential relevance. I hope you’ll indulge me in my occasional forays off the beaten track like this from time to time. If not, be assured that normal service will be resumed next week!

I think I’m an unusual public sector worker. I’m really not that exercised about pension reforms.

My view is that politically certainly, and quite possibly economically, current pension arrangements are unsustainable. Things have to change, one way or another.

The thing that bothers me is the tone of the debate. There has always been an element of political posturing involved in trying to get the upper hand in industrial disputes. It’s not unusual for public sector workers to be portrayed as having better working conditions than private workers, as whatever the truth of this (and it is questionable), it strengthens the Government’s hand in negotiations.

But I feel that under this Government it’s getting out of hand. Am I the only person who finds it rather odd for millionaire politicians and captains of industry to be using the rhetoric of jealousy to make their case? Especially when they’re suggesting that people should be jealous of teachers, prison officers, police officers, etc? What’s more, it strikes me that those who are most prone to argue vocally that the public sector has it too good are often the same ones who equally vocally defended bank bonuses, arguing that criticism of them was just jealousy. Ironic, isn’t it?

I once considered training as a teacher. But the thought of standing in front of a classroom of teenagers ready to leap on my every weakness just didn’t appeal (though now I metaphorically stand in front of a network of (mostly) adults ready to leap on my every weakness). I chose a different route. When a friend who is a teacher tells me about having to confiscate knives from kids that tower over her, I find it a wonder that anyone would want to do that job however much they are paid, or however good their pension may be.

Similarly, I can see that people who have set up their own businesses and are struggling with overheads in difficult times are in a tough place. But they chose to do it for the most part. They do it because they enjoy doing what they do. Because they value their independence. Or for any one of a dozen or more different reasons. But at some point along the line they made a conscious decision to make their living that way, and to accept the consequences of that.

People choose different paths in life. We’re lucky to live in a free society where we can do that. We shouldn’t be jealous of others who chose other paths. And certainly our leaders should think carefully before they try to encourage such jealousy. It might win short term political battles but it really does great harm to the harmony of our society to perpetuate these (mostly artificial) divisions.