The Constitution Unit


Monthly Update: April 2011

Freedom of information in the UK

ICO criticises Cabinet Office, MoD and Birmingham City Council over delays

The ICO has announced a list of government departments facing regulatory action over delays in carrying out their FOI obligations. The ICO has been monitoring the performance of 33 public authorities after concerns over delays in their response to FOI requests. Of 33 bodies monitored over the past three months, two-thirds had improved, but among those who fell short of the ICO's standards were the Cabinet Office, the Ministry of Defence and Birmingham City Council.

Commenting on the announcement, Information Commissioner Christopher Graham said: "Responding promptly to FOI requests is key to delivering citizens' rights. Too many public authorities are taking too long to decide either way whether to release information or to refuse requests". Blogging on the topic, Martin Rosenbaum remarked that "anecdotally from our own experience, I am not surprised that the Cabinet Office and the Ministry of Defence are two of the authorities focused on in this way". A spokesman for the Cabinet Office responded to the news, saying that "[w]hile this is a long-standing issue for the department, the number of FOIs has also increased by over a third in just over 12 months. We take the information Commissioner's comments seriously and we have already taken steps to improve our performance". It is worth noting that the increase of over one-third is mirrored in local government, with our most recent survey of local government officials in England finding an increase of 38 per cent.

The ICO has added new organisations to its monitoring programme (see local government section below).

Exempt information leaked as a result of flawed redaction

The Ministries of Defence and Health have been embarrassed after releasing documents where redacted sections could be read by copying the text into another document or holding the document up to the light. Leaked information included reports on the ability of the British fleet to cope with catastrophic accidents, the names of individuals handling sensitive information about a submarine project, and details of a private meeting to discuss contaminated blood.

A spokesman for the Ministry of Defence issued a statement in response to the story: "The MoD is grateful to the journalist for bringing this matter to our attention. As soon as we were told about this, we took steps to ensure the document was removed from the public domain and replaced by a properly redacted version". Commenting on the news, Graham Cluley of online security experts Sophos, said, "it's a staggeringly stupid thing to do. Anyone with even an elementary knowledge of computing would know how to [access the redacted information]."

Salmond appeals ICO decision on the release of tax documents

Scottish First Minister, Alex Salmond, continued his opposition to releasing documents in which his chief economic advisor discusses SNP proposals for income tax reform. The Telegraph lodged a FOI request over two years ago seeking access to the documents, but Mr Salmond is pursuing his case to the Court of Session, the highest civil court in Scotland, in opposition to release.

The litigation has been widely opposed by opposition leaders, with Labour's Holyrood leader calling the action "pretty scandalous in the middle of an election campaign", and remarking that one cannot escape the suspicion that the document contains information that would be damaging to Mr Salmond. Scottish Tory leader, Annabel Goldie, was also critical, claiming that there was some "bad, bad news in the document". In response to the criticism, the First Minister argued that the information contained employment projections indicating how much would be raised by the tax, and that the economy had significantly improved since the document was written.

Meanwhile the Scottish Greens have outlined their plans for FOI beofre the Scottish elections on 5 May. They argue Scottish freedom of information legislation is riddled with weaknesses and loopholes, and have pledged to extend the coverage of the law and remove the £600 cost limit for requests. They also pledged to allow access to information held by contractors working on public projects. Party co-leader Patrick Harvie said "All the parties talk a good game on freedom of information, until they get into office. But those high principles tend not to survive when ministers get desperate to retain power and keep their mistakes hidden away." While giving credit to Labour for introducing the legislation, "the law is too weak and still too easily abused. Greens will commit to a true freedom of information scheme, one which brings in currently exempted public bodies and close these key loopholes."

Documents released under FOI suggest link between oil firms and invasion of Iraq

Documents obtained by the Independent under FOI have brought to light government discussion of the interests of British oil companies in the build up to the war in Iraq. Among those documents are sections of a Foreign Office memorandum to the effect that " Iraq is the big oil prospect. BP are desperate to get in there [ Iraq] and anxious that political deals should not deny them the opportunity to compete. The long-term potential is enormous...", while minutes from a meeting with BP, Shell and BG read, "Baroness Symons agreed that it would be difficult to justify British companies losing out in Iraq in that way if the UK had itself been a conspicuous supporter of the US government throughout the crisis".

FOI and Parliament

Information Rights Tribunal orders MoD to disclose rendition documents

The Ministry of Defence has been ordered to disclose some of the information held regarding the practice of extraordinary rendition, requested by the All-Party Parliamentary Group on Extraordinary Rendition over three years ago. Information ordered for release includes details of the capture and detention of detainees in relation to the conflict in Afghanistan, but as a result of the exemption on information supplied or relating to security matters, the information about detentions during the Iraq conflict will not be made available.

The APPG Ext. Ren. made the requests following allegations by Ben Griffin, a former member of the SAS, that detainees captured by British special forces had been transferred to US forces under whose authority they had been tortured or unlawfully removed from Iraq.

An internal MoD review concluded in 2008 that there was no evidence of unlawful rendition but it later admitted that two detainees captured by British forces in Iraq had been rendered to a jail in Afghanistan. APPG Ext. Ren. chair, Conservative backbencher, Andrew Tyrie, said, "For closure on rendition we need disclosure. One way or another, the truth will eventually come out. Unless the MoD decides to appeal, this judgment will add to the drip-drip of information on rendition in recent years. Far better for us to get to the bottom of this quickly, to learn the lessons and to move on."

Local Government

Eric Pickles announces further data requirements for councils

Following up on January's publication of data on all spending over £500, Secretary of State for Communities and Local Government, Eric Pickles, has announced a list of 27 "data collection demands". Included within the list are Comprehensive Area Assessments and the Place Survey. Seeking to counter fears that this is just the next demand of many, Mr Pickles MP said "[f]or too long council staff have worked to the whims of Whitehall, waiting for the next data demand to increase their workload. If it is not on [this] list, we won't be asking for it".

The ICO's monitoring of public bodies with 'problems' complying with FOI has seen 17 new additions who will be monitored over the next three months. Eleven are local councils, including Nottingham City Council, who refused to publish spending data in accordance with demands from Eric Pickles' previous publication drive, as well as Kirklees Council, whose leader was involved in a scandal about allegedly amending responses to freedom of information requests.

Council reports a surge in FOI requests

Perth and Kinross Council has reported a significant increase in its workload under the FOI. The council reported that it has experienced a 25 per cent increase on requests compared to its previous year's figures, increasing the cost of requests to £105,000 for the year, an average of £120 per request. The council's projections indicate that requests may rise to as high 1200 per year by 2013, an increase of over 70 per cent on this year's figures. Despite concerns about the increasing workload of councils in the face of funding cuts, Kathleen Baird, the Committee convener said, "I welcome the opportunity to examine the performance of the council in responding to FOI requests and to look at some of the issues and challenges this work raises." The Unit has just launched the latest survey of English local government FOI officers, with each officer invited to complete the survey online by September.

Councillors use FOI to criticise spending

Opposition Conservative councillors on Darlington Borough Council have used the itemised spending published by the Council, and FOI requests, to identify 'needless spending'.

Councillor Heather Scott, the Conservative group leader said, "A simple review of published information demonstrates there is ample scope for savings without hitting the front line. The fact Labour has maxed out Darlington's credit card demonstrates it cannot be trusted to take the right decisions in the years to come." The Conservatives attacked spending on advertising, PR, external consultants and staff suspended on full pay.

The council much of the advertising spending was public notices which are required by law. Consultants and agency staff were used for hard to recruit areas like social work or for short-term projects where hiring staff would not be cost effective.

FOI Elsewhere


Accusations of politicisation of FOI in the USA

The Committee on Oversight and Government Reform, under the Chairmanship of Darrell Issa, published its report into the FOI practices of the Department of Homeland Security. The report alleges that political staff under DHS Secretary Janet Napolitano, "have corrupted the agency's FOIA compliance procedures, exerted political pressure on FOIA compliance officers, and undermined the federal government's accountability to the American people". The report found that it was common for requests to be forwarded to the office of DHS Secretary, Janet Napolitano before a response was made.

Commenting on the publication, DHS General Counsel Ivan Fong, criticised the report claiming that "[it] reads more like an advocacy piece rather than a sober, substantive, dispassionate investigative report", while Democratic congressman Gerald Connelly defended the practice of the secretary's office reviewing FOIA requests. A second report into the department, by the DHS Acting Inspector General used more moderate language than the Oversight Committee, but did highlight a need for changes. In particular, the report identified instances where potential embarrassing language was redacted as inappropriate.

Controversy over political motivated FOI campaigns against university professors

News coverage has been emerging from the US this month about political bodies requesting details about academics and copies of their correspondence. In particular, the Mackinac Centre has filed a number of requests with the University of Wisconsin and Michigan State University asking for emails that mention collective bargaining disputes.

Ken Braun, the director of MichiganTransparency.Org for the Mackinac Centre, explained the organisation's actions saying , "we were interested in determining whether the LSC and the labour faculty of Michigan's … large public universities had actively employed the university resources to enter the political debates [on labour rights]". Ian Robinson, a lecturer in the Department of Sociology at the University of Michigan who has collected 1600 signatures on a petition with the aim of protecting academic freedom on campus, has questioned the motives of requesters asking whether "they are trying to intimidate individuals … making them not participate any more … making them fearful of participating".

Such requests have moved beyond Wisconsin labour disputes, with climate scientists at the University of Virginia also being targeted by groups with political agenda.

Jersey says no to FOI

The Jersey Council of Ministers has decided against passing FOI legislation, citing cost as the main inhibiting factor.

Jersey has had a code in place since 2000 which covered access to personal information kept by departments. After public consultation, a draft FOI law - modeled on the UK's - was drawn up earlier this year by the Privileges and Procedures Committee. But there was little enthusiasm for FOI within the Council of Ministers, who have said there would need to be cuts in the business plan and strategic plan to afford the £5.6m needed to implement it, and the £1.3m a year afterwards.

While it said that it fully supported the principles of the law, it was inadequately resourced and had little chance of success. The freedom of information bill will be debated on 3 May 2011.

World Bank publishes database on FOI laws

The World Bank launched a database on FOI laws this month as part of its Public Accountability Mechanism initiative. The online tool takes a sample of 75 countries- weighted towards less developed countries- that have a constitutional requirement for access to information, although not all had further legislation. The database covers a wide range of aspects of FOI regimes, taking account of legal framework, coverage of information, exemptions, enforcement mechanisms, and sanctions for non-compliance as well as a number of other aspects. The project has taken more than four years to develop, building on a pilot started in 2006, and should provide a useful tool for those wishing to conduct comparative studies of FOI regimes.

Data Protection

The ICO has been criticised for not utilising the potential of increased fines for data protection breaches. But the ICO contends its critics has misinterpreted the information relating to the fines issued so far.

A Freedom of Information request from encryption specialist ViaSat, made public on Wednesday, revealed that 2,565 data breaches had been reported to the government watchdog in the year since a tougher enforcement regime was introduced in April 2010. Just 36 of these cases have resulted in any form of action by the ICO to date. Only four have resulted in civil penalties.

Further, the four penalties have only added up to £310,000 in total, despite the statutory maximum fine set at £500,000. "The ICO has stated that the embarrassment and poor image of a fine will act as a deterrent and an incentive to improve an organisation's grasp of the Data Protection Act," said Chris McIntosh, chief exec of ViaSat UK. "However, if fines are rare and well below the maximum allowed limit, their value as a deterrent drops."

But the ICO hit back, saying ViaSat had misinterpreted the information about breaches supplied to them by the ICO as an FOI request.

The ICO released a statement claiming that one of the statistics, relating to the number of data breaches reported between 6 April 2010 and 22 March 2011, supplied to ViaSat, has been misinterpreted. This claim is denied by the firm. According to ViaSat, 2,565 potential data breaches were reported during that period, while the ICO claims the actual figure is far fewer.

A ICO spokesperson explained: "While it is true that the ICO has concluded that in 2,565 cases compliance with the DPA was unlikely, the figure for self-reported security breaches - where information has been disclosed or lost - is far lower.

"The 2,565 [figure] cover all types of compliance including a company sending unwanted postal marketing, incorrect data being held or an organisation not handling a subject access request appropriately."

In total, the ICO said it received 603 self-reported data breaches, 37 of which resulted in action being taken. The representative continued: "These [self-reported security breaches] vary from minor administrative errors, where enforcement action would not be appropriate to serious data losses which led to the ICO imposing a monetary penalty."

Meanwhile, the ICO will also gain new monetary penalties of up to £500,000 to use for serious breaches of the Privacy and Electronic Communications Regulations (PECR) from 25 May 2011, when an amendment to PECR will come into force (the amendment transposes the revised e-Privacy Directive into UK law). Breaches of PERC include making unwanted marketing phone calls or sending unwanted marketing emails to consumers.

Information Commissioner Christopher Graham welcomed the new powers, saying, "the ICO has been calling for increased powers to regulate breaches of PECR for some time...we will be issuing guidance to reflect the changes that are being introduced."

ICO decisions - April 2011

Most recent First Tier (Information Rights) Tribunal Decisions