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The Constitution Unit

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Monthly Update

December 2011

As 2011 ends and 2012 begins, information policy in the UK is being pulled in different directions. The government continues to push ahead with its Open Data agenda, and remains committed to extending the remit of the Act to new public bodies. The ICO has confirmed that 'private emails' that contain public business are indeed public, and various public servants and politicians are beginning to voice more loudly their discontent with FOI legislation.

All these opinions will help inform the Justice Select Committee's post-legislative scrutiny of FOI in the UK, which will be informed by the Ministry of Justice's own take on the law in their recently published Memorandum. The MOJ have gathered evidence from civil servants, and while costs and vexatious requests feature as common complaints, Martin Rosenbaum notes it "is striking that few more fundamental concerns are reported by the Ministry. The basic structure of how FOI works - a general right to know, subject to exemptions and in many cases a public interest test - therefore seems to be widely accepted by public authorities."

Frustration at the end of 2011

Officials from all levels of government have expressed frustration with FOI as the year comes to a close. The country's highest-ranking civil servant, outgoing Cabinet Secretary Sir Gus O'Donnell, has expanded on his previous comments to parliament regarding Freedom of Information in an interview with The Times (paywall). While 'believing in transparency', he has 'become convinced that the Freedom of Information Act went too far.'

"Freedom of information that allows the public to ask questions about things is fine but the bit that I'm really against is where it reduces the quality of our governance. I want Cabinet to have real discussions, for people to be able to say, 'I disagree with this policy'…I want the minutes to accurately reflect what people have said. I don't want us to be fudging the issue by saying that there was a little discussion. I'm not fudging it now but I'm really nervous. Can I guarantee that this is going to stay private? No, I can't."

Speaking on the use of the veto to protect cabinet minutes, Sir Gus described it as a necessary, 'nuclear' option. He would like to see the legislation amended to make clear that Cabinet meetings should remain private. "If we could draft it in a way that would really enhance openness and transparency while allowing some safe space, that would be good for all of us. I think that we would have better government," he said.

Similarly (and at the other end of the government spectrum), the BBC reports Walberswick Parish Council Chairman David Clark has described FOI as an 'unbearable burden', as he has been forced to make cuts to services after facing a 'blizzard' of FOI requests. Likewise, Dyfed Powys Chief Constable Ian Arundale has hit out frivolous FOI requests about UFOs and witches. "We have to make 20 per cent cuts yet cannot touch a range of statutory obligations such as Freedom of Information….It is worrying that we are spending on that and not beat and service delivery."

Simon Hart MP has taken up Arundale's argument: "Some questions are totally legitimate and the FOI Act is a vital tool in increasing the transparency and accountability of public bodies. However when it comes to spurious, time-wasting questions from anonymous email accounts I really do think it's time to tighten up." Examples of spurious questions have recently been compiled by the Local Government Association in its list of the Top Ten most bizarre FOI requests of 2011. The winner? A request for information relating to the preparedness of soldiers defending against invasion by Napoleon's marauding hordes, made to West Devon District Council.

Other sectors are taking a more serious approach to FOI reform in 2012: The Higher Education sector hopes to secure an exemption for on-going academic research information, like the Scottish FOI Act, while The Duchy of Cornwall is to appeal an Information Tribunal ruling in regards to its responsibilities under the EIRs.

The ICO's 'clarification' of the status of public information stored on private email accounts was delivered with a subtle salvo aimed at Whitehall ministers who may have been displeased: "It should not come as a surprise to public authorities to have the clarification that information held in private email accounts can be subject to Freedom of Information law if it relates to official business," said Information Commissioner Christopher Graham. "This has always been the case - the Act covers all recorded information in any form." He noted the issuing of the guidance was in response to reports back in September of Education Ministry officials using private email to conduct government business. The clarification was welcomed by the Campaign for Freedom of Information's Maurice Frankel, noting that "officials [can't] avoid FOI simply by doing their work on their home computers, using private email accounts or keeping official files under their beds. If it was that easy to avoid FOI, Whitehall would have closed down and government business would be carried out from people's homes."

But the Guardian reports the Public Administration Select Committee may hold an inquiry after the ICO's clarification, with Chairman Bernard Jenkin 'understood to believe the law is in danger of being discredited by over-interpretation… He has argued that if the judiciary overplays its hand, the act will become less and less effective because its credibility is undermined by over-extension of its original intent.'

Coalition remains committed to expansion

At an event held by think-tank Demos, Nick Clegg reiterated his intention to bring non-state institutions that carry out a public function under FOI (indicating Network Rail as an example). Meanwhile, Housing Minister Grant Shapps hit out at Housing Associations for refusing to 'open their books' to greater scrutiny, despite his repeated calls for them to follow the government's lead and become more transparent. In a letter to the National Housing Federation, Shapps warned that "With Whitehall taking the lead, and Town Halls following suit, these landlords are increasingly looking outdated and out of touch. And with our plans to consult on the potential extension of the Freedom of Information Act to housing associations, the clock is ticking for those landlords who keep their books stubbornly closed." You can read Federation chief David Orr's sharp response here.

Prime Minister David Cameron has outlined plans to share NHS patient data with researchers in order to boost the £50bn life sciences industry. He announced a £180m 'catalyst fund' that will make it easier for drug companies to run clinical trials in hospitals and to benefit from the NHS's collection of patient data. But privacy campaigners are worried about the government's guarantees of patient anonymity in any data shared. Nick Pickles, director of privacy campaign group Big Brother Watch, said there was a need for more information about how patients' health data was currently being used and how it would be used under the new proposals. He said a lack of detail was an "unnecessary concern", the Guardian reports.

Overseas

Reform in Scotland

Scotland is similarly to review its own FOI legislation (as well as amend the law to iron out some technical deficiencies), as the Scottish government continues to face criticisms for its decision to not extend FOI to private organisations carrying out public functions (the most notable critic being outgoing Commissioner Kevin Dunion). Scotland's legislation and its operation was praised however at a recent conference in Edinburgh held by the ICO and Holyrood. Dunion spoke of the rarity among commissioners worldwide to sit and meet officials and requesters in settings such as the conference, highlighting the cordial political atmosphere FOI operates within in Scotland.

Positive movements towards transparency: Burma, US, Brasil and Victoria

There is hope for Burma/Myanmar, despite its ranking as the fourth-worst country for media freedom: Jen-Francois Juliard from Reporters without Borders says the head of Burma's Press Scrutiny Board called for press freedom in the country, saying his own department should be closed down as part of reforms being pursued by the new nominally civilian government. The Board is unique in the world as it requires print media to submit articles for approval before publication.

Agriculture experts on the National Research Council in the US have advocated the online publication government meat, poultry and egg inspections and testing data. The committee studied the possible consequences of publishing such detailed information on the Internet, and concluded that it could introduce a new incentive for processors to avoid disease-causing contaminants. Information from inspections by the federal Department of Agriculture's Food Safety and Inspection Service has previously been available to consumers and consumer advocacy groups only through FOI requests. Making data public outside of the FOI process 'would enable consumers to make more informed choices about what foods to purchase, while motivating processors to improve their food safety performance, the committee said. It would also make information more readily available to epidemiologists and researchers.'

Brazil's new FOI law is being helped along by the creation of an online request portal modelled on the UK's own WhatDoTheyKnow. A group of hackers created Queremos Saber (We Want to Know), as they "wanted to make people understand that they have a right to this information, and to make the law a practical, everyday reality in society," explained Queremos Saber founder Pedro Markun. The introduction of Brazil's law coincides with corruption allegations against six of President Dilma Rousseff's cabinet ministers.

The Australian state of Victoria will get its first Information Commissioner in 2012, as it overhauls its widely criticised FOI legislation. Other Australian states New South Wales and Tasmania have recently updated their laws, and FOI expert Professor Rick Snell notes Victoria's changes are long overdue. He told The Melbourne Age ''the idea of having a specialised body devoted to information management and handling is a very worthwhile path in helping to make the system work.'' However, Premier Ted Baillieu is being criticised for the lengthy delays to implement new legislation, and the Labor opposition says it is continuing to be stonewalled by Baillieu's own office when making requests. Farrah Tomazin, politics reporter for The Age, remains disappointed of the reforms: "The new commissioner will not be able to review decisions by ministers or department heads. He or she will not have authority to release ''cabinet-in-confidence'' documents (one of the main reasons to refuse access) or anything relating to national security… If the government is serious about being more open, it would give its new watchdog some real teeth."

Data Protection and Parliament

Rob Halfon MP has expressed his anger at the London School of Economics' rejections of his FOI requests regarding the awarding of a PhD to Saif al-Islam, son of late Colonel Gaddafi. He called for Higher Education Minister David Willetts to "urge the LSE to publish what really went on in this disgraceful episode of taking blood money for PhDs." Commons Leader Sir George Young suggested Halfon take his complaint to the ICO, but noted data protection provisions can protect information relating to individuals. "I can understand your deep concern about this," he added.

Similarly, Baroness Deech has lamented data protection provisions that, in her opinion, disrupt the universities admission process. Deech was a law tutor at Oxford for 20 years. She went so far as to say, "If I was prime minister for half a day I would abolish the Freedom of Information Act and the Data Protection Act and start all over again."

"Before the Data Protection Act, we got references from schools. They might say, 'Young so and so may be very shy and quiet, but we assure you she's very bright, give her a chance. Her mother's an alcoholic, her father left her, but we know she will deliver'… They won't say that now. All references just say, 'Young so and so will get three As, she's been a good student...' because they know the parents can see it… They're not worth the paper they're written on and I think that's really wrong. It's destroyed the ability to choose."

DP expert Tim Turner has criticised Baroness Deech's understanding of how the Data Protection Act works in practice: "In the years I have been working on Data Protection, I have encountered some ludicrous views on the Act's idiosyncrasies, so I cannot say for certain that the noble Baroness' musings are the worst… Her antipathy to transparency would shift power from individuals back to organisations, allowing them to say what they like about people with impunity. It's an elitist and undemocratic approach - but I did mention that she is a member of the House of Lords…"

Link to ICO cases from December

Link to First Tier (Information Rights) Tribunal cases from December