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Monthly Update

April 2012

Freedom of information in the UK

Jack Straw gives witness evidence to Justice Committee

April saw the continuation of the post-legislative scrutiny of the Freedom of Information Act being carried out by the Justice Select Committee and Jack Straw’s witness evidence drew particular attention, during which the Act was described as “convoluted”, “not well constructed” and had led to “less openness rather than more”.

The former home secretary, primarily responsible for the passage of the Act in 2000, stated that sections 35 and 36 of the Act, which outline qualified exemptions for information relating to the formation of government policy and information which would prejudice the conduct of public affairs respectively, in particular needed to be “clarified”. Mr Straw proposed the introduction of a class exemption and removal of the public interest test for ministerial communications, legal and professional advice and other information relating to policy formation in order to ensure a ‘safe space’ for discussion and the exchange of free and frank advice.

Mr Straw suggested the Act has resulted in difficulties in “securing accountability”, with instances of “unminuted meetings” at high levels taking place in order to avoid the details of those conversations being disclosed, and private secretaries fearing the disclosure of their notebooks “where the personalities and stream of consciousness of their ministers were displayed in horrific detail”. Without the appropriate amendments to the Act, Mr Straw envisaged that there would be a probable increase in “quasi decision-making through text and Blackberry message” in order to avoid potential disclosure, resulting in a detrimental effect on the government record.

Mr Straw also commented that FOI should not be retrospective, as people were denied the opportunity to prepare things with the knowledge that they might be made publicly available. The introduction of charges was also proposed, along with the removal of requester blindness as methods of reducing ‘vexatious’ requests and keeping the cost of FOI down.

Reaction pointed to Mr Straw’s own admission to the Justice Committee that if a “decision was defensible, there was no problem with putting it on the record”, noting that the Act did not have a negative effect on his ministerial duties or record keeping, questioning why it should be different for other ministers; even if exemptions relating to policy formation were not as robust as first thought, limited use of the ministerial veto points to minimal impact on good government.

Tribunal decision on NHS risk register published

The Information Tribunal has published the reasoning behind its decision on the FOI requests for two NHS reform risk registers. The requests were initially refused by the Department of Health, however the Information Commissioner ordered that both registers be disclosed.

Following an appeal by the Department of Health, the Tribunal subsequently upheld the Information Commission’s decision on the ‘Transition Risk Register’, but allowed the appeal in relation to the ‘Strategic Risk Register’ due to the differences in content and timing of the requests. As the ‘Strategic Risk Register’ was to be the subject of further policy development by ministers it was withheld, whereas the ‘Transition Risk Register’ was released as it was primarily concerned with risks of implementation and operational matters and the broad policy decision had already been made at the time of the request.

The Tribunal, taking into consideration research by the Constitution Unit, accepted that policy formation was a “continuous circle” and took the view that the “safe space” required for policy formation would fluctuate throughout this process. Consequently, determining public interest is dependent on how much “safe space is needed at the time of the request in the circumstances of the particular case”.

The decision to release one of the registers goes against the concerns expressed by Lord O’Donnell amongst others regarding the potential chilling effect on registers as a tool for policy development, with the Tribunal preferring The Constitution Unit’s research that concluded there is little evidence to support such fears.

John Healey MP who submitted the request for the ‘Transition risk register’, commented that this will be viewed as a landmark case, as it “sets fresh expectations about people’s right to know the risks the government is taking and its mitigating work, and reinforces Parliament’s right to know as we legislate”.

Figures on FOI in central government released

The Ministry of Justice published annual statistics covering the implementation and operation of FOI in central government.

2011 saw monitored central government bodies receive 47,141 non-routine information requests; a 7 per cent increase on the previous year. This increase has been mainly attributed to:

  • An increase in public awareness of FOI and its potential uses
  • The ease with which members of the public can make a request – with dedicated websites, such as whatdotheyknow.com, allowing requests to be put to public bodies being pinpointed as a key driver

In addition, 10,657 requests were refused, either in full or in part, where one or more exemption or exception was applied – with section 40, information relating to personal data, accounting for 45 per cent of the refusals.

For requests where it was possible to make a substantive decision on whether to release the information being sought during 2011, just over half were granted in full. This continued a decreasing annual trend, and may be reflective of the changing nature of requests and increase in proactive publication of certain information.

Newsnight hints possible introduction of charges for FOI requests

BBC’s Newsnight programme aired on 5 April reported that the government is planning to reform the FOI Act, finding the lack of privacy ‘paralysing’. Newsnight’s Allegra Stratton’s report advised that the government is planning to introduce charges, possibly involving a “range of tariffs” for FOI requests, as a method of reducing volumes.

The Save FOI Campaign expressed concern over this development, as it appears to “pre-judge the outcome of the on-going post-legislative scrutiny of the Act being carried out by the Justice Select Committee”.

Jonathan Baines, one of the founders of the campaign commented, “if Allegra Stratton’s sources are reliable, it looks like someone in government has already made up their mind, and wants to get that message out”.

An FOI request was submitted by information rights blogger and trainer Tim Turner to the Cabinet Office regarding possible charges, who responded by denying all knowledge of any such proposal, advising that they did not hold the requested information and to redirect the enquiry to the Ministry of Justice instead. The request is currently the subject of an internal review.

Cost of FOI in HE

JISC infonet have carried out research into the cost to a university processing a freedom of information request. The research found an average cost per request to be £121.27, a figure which factors in staff overheads, with each request taking an average of around 5 hours to respond to. The project tracked 36 different FOI requests in seven institutions during January 2012.

The figures in the JISC report seem to correlate with the average cost of processing a request in both the Ministry of Justice’s recent FOI memo, which had a figure of £164.00 for non-central and £184.00 for central government departments, and research by the Constitution Unit focusing on local authorities that produced a figure of £159.80. With growing evidence on the cost of FOI it is interesting to note that three different studies with varying research methods, examining different sets of institutions, have all produced a broadly similar figure for the average cost of each FOI request.

Essex County Council v. Brentwood Gazette

The Brentwood Gazette submitted an FOI request regarding the expenditure of Essex County Council and subsequently reported that £181,965 of taxpayers' money was spent on receptions and free wine, beer, tea, coffee for elected council members between April 2006 and April 2011.

Tony Peter Martin the Conservative Leader of ECC, in an email sent directly to the editor, responded by saying it is the Brentwood Gazette and other local newspapers who are guilty of wasting taxpayers’ money by submitting “frivolous” FOI requests “like confetti”, whilst conceding that they cost just “hundreds of pounds to process”. Martin commented that he believes local press only seek to exaggerate negatives, and accused the paper of “sensationalism”, indulging in “constant attacks” on the council.

Mr Martin proposed publishing the amount spent on dealing with FOI requests from the press to demonstrate the cost to local residents. Nev Wilson, the editor of Brentwood Gazette countered by asking “How about publishing all county hall expenditure? Perhaps then the cost of both can be reduced”.

ICO stakeholder survey

The ICO has published the results of a stakeholder perception study among 71 key stakeholders drawn from the public and private sectors and civil society groups

The results were overall positive, with 52 per cent of stakeholders surveyed being very satisfied with the relationship they have with the ICO and a further 38 per cent confirming they were fairly satisfied.

Rest of the world

OGP meets in Brasil

The annual meeting of the Open Government Partnership, an international initiative concerned with the promotion and development of open data and transparency, took place this month in Brazil.

Member countries of the OGP, which was co-chaired this year by the UK, announced their action plans to make their governments more open, transparent and accountable. Initial reviews of the action plans show a number of common pledges including the improvement of public accountability mechanisms, open data portals and improved service delivery.  Following the end of a 12 month cycle, governments will perform a self-assessment on the implementation of their action plan, which will be followed up by an independent review.

Cabinet Office minister Francis Maude praised the OGP conference and the global move towards transparency, supporting the notion of public data being owned by the citizen. This follows recent comments by David Cameron during last months Liaison Committee session who described open data as “real” freedom of information, rather than the “discovery process” of FOI requests.

When asked whether there was a rift between open data and FOI, the Campaign for FOI responded that they didn’t believe this to be the case but were “concerned UK government sees open data as a substitute for FOI”.

Nigeria

Recent reports confirm that despite the introduction of a freedom to information law last year, Nigeria still largely refuses to release government data. Associated Press submitted a trial request for basic information only to find that months after the one-week deadline had ended, the agency in question was continuing to refuse to release the information.

David Aiyetan, the journalist who submitted the request via Associated Press, suggested that journalists and wider civil society needed to be educated about how to use the law in order to force the government into improving accountability. He added, "we think with the passing of the act, we have achieved our dreamland, but there's still so much more work to do".

Hungary

Recent developments in Hungary illustrate that concerns over the cost of FOI requests are as prevalent elsewhere as they are in the UK. Authorities are considering adopting legislation that includes provisions for charging requests for public information at a “reasonable margin of profit”, which national watchdogs have condemned as being potentially “unconstitutional” and creating “legal uncertainty”. There is also a concern regarding the lack of clarity about a proposed ‘re-use agreement’, the terms of which remain unspecified at present.

Canada

Law professor at University of Ottawa, Amir Attaran, has lodged a grievance against the university administrator who released documents related to his research that contained confidential information in response to an FOI request. The documents are also said to have contained Attaran’s credit card number, home address and the address of his parents.

Whilst distressed by the obvious failure to redact personal information, Professor Attaran also drew attention to the potential impact on academic freedom stating that “the defence of confidential information, within the limits prescribed by law, is a cornerstone of the academic freedom to conduct research".

The professor has previously entered into several successful court cases in order to secure access to information concerned with the treatment of Afghan detainees, and suggested that the subsequent increase in information requests received by the university, relating to both his research and personal performance and expenditure, were likely fuelled by politically motivated attempts to discredit him.

Data Protection

Theresa May defends surveillance plans

Theresa May has defended the government’s proposal to allow surveillance of citizen’s calls, emails, texts and website visits, amidst growing concern about the potential impact on privacy. The proposed legislation would allow intelligence officers real time access to communications of the public without a warrant. May has attempted to assuage fears, commenting that “no-one is going to be looking through ordinary people’s emails or Facebook posts”.

The ICO have confirmed they are monitoring the development of the legislation closely and will press for the appropriate “limitations and safeguards” but conceded that the ultimate decision on whether to proceed with rests with Parliament.

Former head of GCHQ Sir David Ormand has drawn attention to the potential chilling effect that may occur on the use of social media as a source of information, stating that an "open" internet that promotes the "free exchange of ideas" was “an economic and public good and should be protected under any new regulation”.

Sir Ormand has co-written a report with think-tank Demos on the ethical, legal and operational challenges that face the use of social media for intelligence purposes. The report acknowledges the potential benefits of using social media as a source of intelligence, adding that any approach must be based on a legal footing, transparency, accountability and public understanding. Demos highlight the need to distinguish between the “public” and “private digital space”, commenting that the greater the intrusion into the “private digital space”, the greater the requirement is for “cause, oversight, legitimate agency and authority”. The authors recommend that the government conduct research and hold consultations in order to make systematic recommendations to Parliament in the form of a green paper. 

Data breach fines detailed

Statistics obtained via an FOI request submitted by satellite-system company ViaSat showed that whilst the private sector accounted for 36 per cent of the 730 reported data breaches over 11 months, it was liable for less than 1 per cent of the resulting fines.

ViaSat UK Chief Executive Chris McIntosh, whilst complimentary of the ICO’s regulation of the public sector, said that the balance needed to be addressed as the private sector appears to "still has a relatively free rein". 

Responding to the accusations prior to his keynote at InfoSecurity 2012, Information Commissioner Christopher Graham commented that this was not the first time ViaSat had pulled a similar “stunt”, and that “Every year, there’s a press release that goes around saying ‘the information commissioner doesn’t know what he is doing, he hasn’t noticed what is going on in the private sector’. Well, guess what? I have noticed.”

Graham confirmed that there was no bias when assessing breaches; instead the focus was on establishing “whether it’s a substantial and serious breach that’s causing distress”. The Commissioner explained that monetary penalties are applicable in instances where customers had been directly affected or distressed by the breach, or in cases where the data controller should have been aware of the risk and failed to prevent it.

Page last modified on 01 may 12 17:25

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