Brexit amendment to FOIA

December 14, 2018 / / No comments

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 £41.99) by emailing info(Replace this parenthesis with the @ sign)facetpublishing.co.uk and quoting the code FOIMAN (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.

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Caught in limbo

November 28, 2018 / / Comments Off on 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

 

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FOI and diaries – long read

November 1, 2018 / / One comment

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.

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It’s about time

October 2, 2018 / / 3 comments

FOIMan highlights a change in the final version of the recently revised s.45 code that confuses rather than clarifies FOI deadlines.

Cabinet Office

Last November the Cabinet Office published a draft of a revised s.45 code of practice. I summarised the content briefly here on the FOIMan blog at the time, and later wrote a more in-depth piece for PDP’s FOI Journal, which you can read here. An even more thorough (and critical) analysis was produced by the Campaign for FOI in its response to the consultation on the draft code.

Back in July the final version of the code was published. Not a lot had changed but what had isn’t to be much welcomed. One particularly regrettable change simply adds more complexity to an already confused issue.

One matter of repeated debate between practitioners and those using the Act is the seemingly indisputable matter of when a request is received. This has caused particular confusion in relation to requests received by public authorities over a weekend or on any other non-working day.

In fact, it shouldn’t be a difficult question to resolve. The wording of the Act itself offers a clear solution. At s.10(6) it defines the ‘date of receipt’ as ‘the day on which the public authority receives the request for information’. Note that it talks of ‘the day’. Not ‘working day’, a phrase used elsewhere in s.10. So the day of receipt can be a Saturday, for example. The first working day – day one for the purposes of FOI – is the following Monday. This is the approach taken by the Information Commissioner in her guidance (see paras. 36-39).

What’s more, the draft of the revised code also followed this interpretation at paragraph 4.2:

The date on which a request is received is the calendar day on which it arrives… If a request is received on a non-working day, for example a Saturday, the next working day i.e. Monday, should be counted as “day one” towards the deadline.

But look what the final version says (with my emphasis in bold):

The date on which a request is received is the day on which it arrives or, if this is not a working day, the first working day following its arrival.

It is not clear why the approach was changed, but changed it was. The Cabinet Office’s final choice of wording potentially buys public authorities who follow it an extra day when answering FOI requests, yet appears to contradict the Commissioner’s guidance, and more importantly, the wording of the legislation itself. It will be left to the Commissioner and tribunals ultimately to decide which approach they think is correct if this is ever in dispute. I would suggest that it is most likely that they would plump for the wording of the legislation over what the Cabinet Office wishes it said.

Ultimately this is an argument over a day. And given that FOI also requires requests to be answered promptly, it is perhaps academic to a degree. But it does seem unfortunate that the Cabinet Office has chosen to sow yet more confusion over the interpretation of FOI, when it had an opportunity to provide clarity.

Get in touch if you would be interested in training on FOI, including the new code of practice. The new code is covered extensively in my forthcoming book The Freedom of Information Officer’s Handbook, which is due out in the next couple of months. Details on how to pre-order (and obtain a discount) can be found opposite.

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Keeping a diary (secret)

September 28, 2018 / / Comments Off on 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).

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