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Freedom of Information in the UK
Interview with the Information Commissioner
In an interview held early November, the Information Commissioner, Christopher Graham, outlined the challenges the Office will have to face in the years to come. These include trying to do "more for less" due to the spending cuts affecting public organisations including the ICO. At the moment, it receives over £5m for FOI through grant in aid from the Ministry of Justice, and according to Graham, "the office has never been busier". This trend can be explained by the fact that the office received publicity with the MP expenses scandal and that the government has changed and put information rights at the top of the political agenda. This puts the office in "an exciting place" but Graham admits it will be tough dealing with the workload with the planned cuts. Graham also talked about his priorities for the coming year which include making his office more obviously independent of government. He says it would help him "see off some of the swivelled-eyed critics of the Information Commissioner's Office who thinks it's all a government plot".
Chris Graham is the last speaker in our 2010 FOI seminar series, on 7 December.
More government spending online
Cabinet Minister Francis Maude on 18 November launched new spending data on data.gov.uk - now every Whitehall payment over £25,000 is available for download and mashup. The coalition Government committed to releasing this spending information pro actively, in a format that allows scrutiny by anyone with the necessary time, software and skills. Information Commissioner Chris Graham welcomed the publication, describing it as "the start of a new and exciting chapter for freedom of information - or what could be called FOI version 2.0". However, The FT noted analysing the data still posed significant technical challenges (although no files were released as locked PDF documents as was sometimes done before). They argue comparing spending across Whitehall will continue to be difficult unless the data is subjected to an extensive 'cleaning' process; for instance, ensuring departments are describing categories of spending in the same way, or identifying payees by the same name (e.g. BT or British Telecom). Helpfully, the Open Knowledge Foundation, are developing a series of database lookups to regularise the data in order to collate suppliers and expenditure types across departments. FOIman - an anonymous FOI officer based in London - feels the usefulness of the data is limited by a lack of context: "I'm not saying that these details shouldn't be scrutinised, but if you're going to report it with an arched eyebrow, in words dripping with insinuation, shouldn't you first be sure of the context of the spending? Shouldn't you report that alongside the figures?... It's not truly Open Government if we're just thrown batches of figures and cheap shots at the public sector." This month, FOIman has been interviewed by HelpMeInvestigate - a website for investigative journalism - about the impact of FOI legislation, the difficulties both users of the Act and FOI officers face and the future of government 'transparency'.
University's proactive publication
As financial pressures mount on the university sector, the principal of a leading Scottish higher education institution has promised total transparency over travel expenses. The Royal Scottish Academy of Music and Drama (RSAMD) in Glasgow will become the first such institution in the country to publish detailed staff expenses online. Spending by its principal, John Wallace, will appear on the RSAMD website from January, with the expenses of senior staff and other employees following soon after. Mr Wallace said he wanted to make the information public to show how essential it is for the institution to incur travel expenses. These, he says, are needed to ensure foreign students keep coming to Glasgow, and to raise the cultural profile of Scotland. The move was welcomed by Glasgow MSP Bill Butler, who recently criticised university professors for claiming tens of thousands of pounds in expenses last year. He said it should be compulsory for university expenses to be made public. "These people are employed by the public purse," he said. "I would congratulate this principal on this initiative and I would hope others follow in his footsteps."
Scotland extension of FOI unwelcome
CBI Scotland, a leading business organisation, is opposed to the Scottish Government's proposal to extend the Freedom of Information Act to firms providing public services. The firm said there was "no convincing case" for the move which it claimed would create confusion and increase red tape. It added that it would also become more costly for firms to operate. But FOI commissioner Kevin Dunion disagrees: "It was always anticipated that the Act would be extended to such bodies, to keep pace with the trend towards delivering public services through contractors, local authority trusts and others, and I support the Government's proposals." He also added that "Billions of pounds are being spent from the public purse to pay contractors to provide health, education, and prison services. It is reasonable to expect them to respond to requests for information about what they are delivering."
Local Government
Hampshire county council wants to charge for requests
Hampshire County council has expressed its will to charge for some FOI requests. It believes that people who make profit out of the information they request via FOI should be charged for it. Councillor Davidovitz said of the media: "They are benefiting from research we do on their behalf, at our expense. I see nothing wrong with charging organisations who benefit from the information we give them, for the service we provide. Why should taxpayers pay for newspapers to benefit?" Maurice Frankel, from the Campaign for Freedom of Information, stressed charges needed to be specifically designed to remain fair: "The Act is designed so companies looking for information to improve their own contracts, or compete with the council, can be refused. We have no real objection to straightforward commercial requests carrying a charge. But researchers work for charities and universities, as well as for companies, while newspapers are an important point of scrutiny of local authorities. Neither should be discouraged from their work, which is an important part of transparent government. We'd definitely oppose such a measure." Local Government Minister Eric Pickles subsequently rejected Hampshire County Council's plea. And Bob Satchwell, the Society of Editors' executive director, called the Hampshire initiative "ludicrous".
Woking Council to keep better tabs on FOI
Prompted by a councillor looking for how much FOI costs, Woking Borough council will introduce a centralised recording system FOI requests next year. Cllr Bryan Cross, in a five-part submission to council officers, asked for details on how much money had been spent by the borough council preparing answers to requests over the past two years, and how many had been received in total. Cross tried unsuccessfully to find out the highest number of requests made by one individual, and also asked what proportion came from media organisations.
Council Leader John Kingsbury, told Cross he was unable to divulge specifics as the information was not centrally or separately monitored.
Now the matter is will be discussed at a meeting of the executive committee in late November. In the official notice of motion, Cross has asked the council to update its policies so that each request must go before a director or head of the council's legal service before it could be released. In a statement responding to Cross's request, the council confirmed a central record of FOI requests would be kept from next April, which it hoped would serve three main purposes: "First, it will identify areas of information that might benefit from pro-active dissemination; Second, it will help to ensure that FOI requests are properly and consistently dealt with; Third, it will make it easier to identify persons who abuse the system by submitting repeated requests for information." But the council confirmed it would retain its current system for allocating responsibility for requests, rather than referring all automatically to a senior level.
Waste contractor's details to remain secret
The case centered on the Audit Commission Act 1998, rather than on Freedom of Information legislation, and the right of 'any person interested' to inspect and take copies of council accounts and contracts during a council's audit. The appeal judge ruled that the company had "a right to privacy and quiet enjoyment of possessions" under the European Convention of Human Rights.
Kirsten Whitfield, an associate of the law firm Wragge, said the outcome would reassure contractors. "The [previous] High Court decision left suppliers to the local authorities feeling vulnerable given the potential for a back door to their confidential and commercially sensitive information." The appeal case judge argued that an unlimited flow of information did not necessarily benefit the public because the result was "potentially anti-competitive". Veolia Environmental Services managing director Steve Mitchell welcomed the ruling: "We have always believed that it was wrong to make commercially sensitive material available to our direct competitors as this could potentially have an adverse effect on the benchmarking process and drive up the cost to the local taxpayer."
FOI and Parliament
IPSA won't publish receipts
The Independent Parliamentary Standards Authority (IPSA) has announced that it would be too expensive to publish MPs expenses receipts online. "The cost of preparing tens of thousands of receipts for publication would be more than £1 million a year and would not provide value for taxpayers' money," said a spokesman. Instead, MPs' claims under the new expenses regime will be published on IPSA's website under general categories - such as 'travel' - with a description of each claim. Unlock Democracy have reacted furiously to the announcement, urging supporters to write to chair Sir Ian Kennedy: "Publishing expenses and receipts was the reason IPSA was created in the first place - to clear up the secrecy behind MPs expenses Don't let them get away with what will be business as usual. IPSA was set up to be independent of MPs and to promote transparency and restore trust. How does this decision do that?" IPSA too has been criticised by the ICO when MPs personal details were accidentally placed at risk on the MPs expenses database.
Parliamentary Privilege no defense for MPs
The Supreme Court has ruled against the three ex-MPs being protected by Parliamentary Privilege. David Chaytor, Elliot Morley and Jim Devine are facing criminal charges over their expenses lost their final appeal. They had appealed against an earlier ruling which had decided that PP does not apply to expenses cases. The Court of Appeal explained that the 302-year old law was designed to encourage free debate in parliament by freeing MPs of anti-slander laws and those governing contempt of court. However, the court ruled PP was never supposed to apply to "ordinary alleged crimes". This month, the Supreme Court agreed, and ruled the MPs should not have their fate decided in Parliament but instead should be tried in a criminal court. The former MPs will now face separate trials at London's Southwark crown court, the first of which is due to begin on 22 November. If found guilty of theft by false accounting, all three could face a maximum sentence of seven years in prison.
Secretary accused of 'bias' as MPs' request 'snubbed'
Scottish Secretary Michael Moore has been accused of turning down a freedom of information request because of the political affiliation of the person who made it.
Scottish Labour's general secretary Colin Smyth has made a formal complaint to Information Commissioner Christopher Graham after a request for details on correspondence, discussions and meetings between Mr Moore and Deputy Prime Minister Nick Clegg over the clash of the Holyrood election and alternative vote referendum next year was rejected. The basis of the complaint is a briefing document sent to Mr Moore from a civil servant on answering the question from Gordon Aikman. The briefing paper was accidentally forwarded to Mr Aikman instead of the answer. In the opening sentence, the document reminds the minister that Mr Aikman is "a Labour Party researcher". Mr Smyth said the identity and political affiliation of the person making the request was irrelevant and not a legal ground to refuse it. He has questioned why Mr Aikman's job and political affiliation were included in the briefing document and suggested that it was the real reason for the refusal. A Labour spokesman said: "This is an extraordinary admission from the Scotland Office. It is outrageous to use someone's political views as the basis of deciding whether information should be released or kept secret." A Scotland Office spokesman said: "The decision was made on advice received by the Cabinet Office and in accordance with the correct procedure. The identity of the person making the request was in no way a factor in the decision-making process. "
FOI in the House
The House of Lords has approved the FOI (Time for Compliance with Request) Regulations 2010 giving academy schools longer to respond to Freedom of Information requests.
The question of extending the FOI Act to the National Union of Students and the Local Government Association remains unanswered, despite a parliamentary question by Conservative MP David Morris. Jonathan Djanogly replied:"The Government are considering a range of options to increase transparency, including extending the scope of the Freedom of Information Act to additional public authorities. The Government will announce their intentions in due course."
FOI overseas
Australia
This month has seen the commencement of the most significant reform of freedom of information laws in two decades in Australia. According to The Office of the Australian Information Commissioner (OAIC) media release, 'the Commonwealth Freedom of Information Act 1982 (FOI Act) has been revised to inject a much stronger pro-disclosure philosophy. A new Information Publication Scheme will require government agencies to publish far more information. Other changes include the simplification and narrowing of the range of exemptions from access, a new single public interest test weighted towards disclosure, and the abolition of application fees for accessing documents.' Professor McMillan, head of the OIAC, said that "[t]hese changes reflect a broader policy change that acknowledges that information held by the Government is a national resource to be managed for public purposes."
See this month's country profile for more information about Australia's revamped FOI regime
France
AccessInfo and Regards Citoyen allege a Bill in the French parliament before the end of the year will result in the police carrying out "behaviour" checks on members of the public and organisations wanting to reuse information obtained from public bodies. The groups said proposed amendments to the 1995 Police Security Act would significantly complicate and slow access to information in France. "This is an extremely dangerous law which would seriously limit freedom of expression in France," said Helen Darbishire, Executive Director of Access Info Europe. Access Info Europe and Regards Citoyens have drafted a letter to ask the MPs involved to withdraw the amendment.
Sierra Leone
The fight for the enactment of the Freedom of Information Bill (FOI) has taken a further step ahead when on Thursday 11 November, Parliament gave the government-proposed bill a first reading and referred it to a legislative committee for further scrutiny. The Society of Democratic Initiatives, a leading member of the Freedom of Information Coalition, said it "hopes for a speedy resolution of due process and therefore prompt enactment of the Bill into national legislation."
South Africa
The chairman of the ad hoc committee in the South African parliament working on the controversial Protection of Information Bill has said, according to media accounts, Parliament will not likely pass the Bill this year. "Parliament has got specified time periods in which bills have to be completed before it can be debated. We have not been able to meet those time periods," he explained. Looking ahead, The Times said that MPs "are expected to spend coming weeks trying to harmonize the cotentious Protection of Information Bill with liberal post-apartheid laws that guarantee access to information." In another development, State Security Minister Cwele promised that the media will be consulted when regulations detailing the introduction of the Protection of Information Bill are drafted. Cwele said editors would be consulted on the drafting of the regulations to ensure that the law is not used to infringe on the work of media specifically.
United States
President Obama has established a new system for the handling of certain sensitive government documents which will replace an 'inefficient, confusing patchwork' that "has resulted in inconsistent marking and safeguarding of documents, led to unclear or unnecessarily restrictive dissemination policies, and created impediments to authorized information sharing." Under the new policy, agencies would use only one term, 'Controlled Unclassified Information,' to describe documents that officials believe should be safeguarded but that are not delicate enough to warrant being classified. That label would replace almost 120 markings that various agencies had developed to protect information. Gary D. Bass, Executive Director of OMB Watch said, "This order creates a fair and public process that acknowledges the need for some information control categories while also making clear the need to limit them. As always, implementation will determine if this policy succeeds or fails."
Out of concern that many countries fail to fully and effectively implement their freedom of information laws, The Carter Center has developed the access to information legislation Implementation Assessment Tool (IAT), which serves the dual purpose of diagnosing the extent to which the public administration is capacitated to respond to requests and to provide information, as well as providing an implementation roadmap for the government. The organization said that "at present there is no objective means of analyzing and addressing this critical problem." The Center will begin piloting the tool in selected countries, adapting the tool based on its initial application. "Before the end of 2011, the Center plans to complete the first series of pilots, utilizing Global Integrity's Indaba, an online platform for researchers, engage in a series of additional peer reviews, and make all necessary modifications to the tool in order to begin the final series of pilots."
Despite assertions that body scanners used in public buildings would not store images, a Freedom of Information request by the Electronic Privacy Information Center revealed the U.S. Marshals Service had saved tens of thousands of images of employees and citizens who passed through one courthouse scanner in Flordia. Now tech site Gizmodo has published 100 of these 35,000 low-resolution body scans that were saved improperly.
Data Protection
ICO proposes post-legislative scrutiny for privacy legislation
An updated report on the state of surveillance in the UK has been presented by the ICO to Parliament. The update follows the 2006 'Surveillance Society Report' and warned that 'since 2006, visual, covert, database and other forms of surveillance have proceeded apace, with regulators working hard to apply their often limited powers to anticipate and control the next developments'. Information Commissioner Christopher Graham has put forward a proposal to introduce a 'more formal and consistent approach to ensuring post legislative scrutiny' for privacy legislation.
"Many of the new laws that come into force every year in the UK have implications for privacy at their heart", said Graham. "My concern is that after they are enacted there is no one looking back to see whether they are being used as intended, or whether the new powers are indeed justified in practice."
The ICO also recommended the imposition of a requirement on the government to 'conduct a privacy impact assessment when bringing forward any law which engages concerns about increased collection and exploitation of personal details of citizens', claiming such a requirement 'may aid parliamentary scrutiny'.
