The Constitution Unit


Monthly Update: August 2011

Freedom of Information in the UK

'Making Open Data Real'

The public has been asked to pitch ideas on how to improve access to information as part of the Government's initiative to further open up government.

The consultation document titled "Making Open Data Real" is part of what Cabinet Office minister Francis Maude calls "the most ambitious open data agenda of any government in the world." While the focus is on proactive publication of official data, there are also proposed changes to FOI. The government is not attempting to widen FOI's scope. Instead, the consultation proposes raising the overall cost limit from £600 to £1000 pounds and allowing the public to lodge a request that takes more than 18 hours to process (currently, a request can be refused if it surpasses that time limit). The initiative hopes to reduce the administrative burden of dealing with FOI requests by asking authorities to release more data proactively.

Further changes proposed are:

  • Reviewing the Information Commissioner's powers to enforce FOI legislation. The document states: "The commissioner […] has powers of entry and inspection in specified circumstances. It is an offence […] to alter, deface, block, erase, destroy, or conceal information with the intention of preventing its disclosure. This offence can apply to any individual. Are these powers sufficient to enforce an enhanced right to data?"
  • Setting statutory time limits for authorities to evaluate if and how to release the data requested during the internal; review stage. At present, the ICO recommends that internal reviews be completed within 20 working days (or 40 in exceptional circumstances) but this is not mandatory.
  • Introducing a new requirement that all public bodies proactively publish data about their services. Right now, public bodies can choose what information to publish. Some questions to be considered are whether the public body will have the right to refuse to publish datasets because of cost, what costs will be considered to be unreasonable, and how to make sure authorities don't inflate the costs.

The Campaign for Freedom of Information, an FOI advocacy group welcomed the consultation.

"The more that is published proactively, the less opportunity there will be for individual authorities to resist disclosure when the figures show that their performance is poor." However, CFOI warned the Localism Bill would take more public services into the realm of the private sector, hidden from FOI and thus undermining scrutiny overall.

The consultation closes on 27 October. Responses will be reviewed, and a White Paper with impact assessments will be issued in autumn.

Read more on the Constitution Unit's blog.


UK riots data

The media has been given access to court information regarding people accused of offences in relation to the UK August riots, as they try to piece together the spontaneous looting and arson that took place after the death of Mark Duggan in Tottenham.

"In an unprecedented act of government transparency, the Ministry of Justice has instructed Magistrates Courts across the country to provide full court results details of all riot-related cases," wrote the Guardian. "These are compiled by the individual courts themselves and have never been released on such a scale before."

Bloggers and columnists have been weighing in on the causes of the riots - some citing youth discontent with wider society, others government cut and the failings of the welfare system.

The Guardian , the BBC and the Telegraph, among others, have displayed details of suspects, including their age, gender, charges, and the court in which their case is being heard. The Guardian is using a data in a larger project to analyse the underlying causes of the riots.

But as courts review examine the cases of riot suspects, civil liberties groups warn against inconsistent sentencing. Court data, now open to the public may invite further public scrutiny, leading to unjust punishment.

"We know the courts are swamped with cases and handing down hurried and overly punitive sentences [that] will result in many criminal appeals which will act as a further drag on the system," Andrew Neilson, director of campaigns for the Howard League for Penal Reform, told the Guardian.

Cuts in services to blame?

The magazine Children and Young People Now, sent round-robin Freedom of Information requests to every local authority in the country to find data on government spending for young people.

"Figures [...] show that several areas affected by last week's violence and looting have made substantial cuts to spending on youth services and Connexions," wrote the magazine.

In Haringey, the first London borough affected by riots, CYP Now found that services had been slashed by 62 percent this year and expect a further 30 percent cut next year. Salford, which was also affected by rioting, cut its services for youth by 30 percent and plans to cut another 18 percent in funding next year.

Council member crunches numbers on Freedom of Information Website

Mark Goodge a programmer and member of Evesham Town Council , has complied an overview of requests to local authorities in WhatDoTheyKnow , a website that acts as a middleman between Freedom of Information requesters and the government.

Goodge built a database of the success rate of requests made through WhatDoTheyKnow by adding together the statuses of the requests as displayed on the website.

His findings are set up in very easy to read tables. Here is a summary:

  • York City Council is the most open authority with a 94 percent success rate for requests (though there is less than 1 percent difference between the top three)
  • The top ten most open authorities are in local government, with a 'success' rate over 90 percent. "That's almost certainly partly because local authorities get fewer of the unanswerable [...] requests that go to some central government departments, but, even so, I think this is something which reflects well on local government in the UK," Goodge said.
  • The authority receiving the largest number of requests is the UK Border Agency (it's also the second "tardiest")
  • The number one "tardiest" authority is Her Majesty's Courts Service, with 16.7 percent of requests overdue
  • The least open authority in the UK is the BBC, which refuses 38 percent of requests. The BBC is permitted to refuse requests related to material held for journalistic or artistic reasons, but Goodge decided to include it in the survey anyway because, he says, he's "not at all convinced that this is being used as much more than a convenient loophole - just because you can refuse to supply some information, it doesn't mean that you should."

WhatDoTheyKnow is one of MySociety.org 's ten websites on facilitating communication and accountability between government and the public. In July, the organisation released a report on the effectiveness of two of their websites (read July's Monthly Updates).


Thatcher's Hillsborough papers

The government has confirmed it will release cabinet discussions on the 1989 Hillsborough stadium disaster after the number of signatures on an e-petition calling for disclosure reached the 100,000 mark.

The manner in which the information is being made public satisfies the Hillsborough Family Support Group, which represents the majority of the families, but not the original requester.

The demand for the meeting minutes involving Margaret Thatcher's cabinet deliberations on the 1989 tragedy, started with a Freedom of Information request made by the BBC in April 2009. When this was refused by the Cabinet Office, the BBC took the case to the Information Commissioner. The ruling , published last month, asked the Cabinet Office to release the papers, saying public interest outweighed considerations against disclosure.

The Cabinet Office, this month, appealed the ICO decision to the Information Rights Tribunal, arguing that the Thatcher papers must instead be released through an independent panel set up by the previous Labour government, which is assessing what information should be made public. "The government's view is that it is in the public interest for the process that is under way through the Hillsborough Independent Panel be allowed to take its course."

The government argued the same point when the appeal was taken to the ICO, but Commissioner Christopher Graham discarded it because the panel had not been set up at the time of the request.

When the e-petition pushed the government to clarify its position, it affirmed it would release the information through the panel. However, according to the news organisation's FOI specialist Martin Rosenbaum, the terms of reference for the panel restrict a large portion of the information first requested by the BBC. For instance, its programme of disclosures excludes "information indicating the views of ministers, where release would prejudice the convention of Cabinet collective responsibility."

Collective responsibility is protected by an exemption in the FOI Act. But in his decision to release the papers, the Commissioner affirmed that while cabinet discussions fitted within the parameters of the "collective responsibility" exemption, he concluded the exemption did not withstand the test of time (read the Constitution Unit blog for more details on the ICO decision).

Though release through an independent panel does not satisfy the BBC or the ICO, it is what the Hillsborough families want. The Hillsborough Family Support Group prefers the "papers be released to the panel first so they can be put into context, and then shown to the families, before then being released to the wider public," said Margaret Aspinall , the chair of the HFSG.

Since the e-petition system was introduced last month , only one other petition, which called for rioters to lose their benefits, has hit the 100,000 signature target. Rosenbaum questioned whether the e-petition may have more effect on government policy than the Information Commissioner.

Bloomberg News fights FOI case over Anglo-Iran trade

The Information Commissioner has changed his mind about backing Bloomberg News in their attempts to obtain information about UK companies trading with Iran, the news organisation has claimed.

Bloomberg, based in New York, made a Freedom of Information request to the Department for Business, Innovation and Skills (BIS) in 2009, to "release the names of British businesses that applied to ship controlled goods to Iran in the first half of that year." The request "was part of an investigation into a string of Iranian air disasters that killed hundreds of people, including a February 2003 crash in which 276 died in central Iran," according to Bloomberg. "It's critical to understand who's doing business with a pariah state," said Mark Stephens, Bloomberg News' lawyer.

BIS refused the request, saying that banks may cut off their services to the companies involved out of fear of being targeted by US authorities.

Bloomberg alleges the Information Commissioner's Office initially backed the organisation but then reversed its decision after BIS "filed secret third-party responses with the ICO." The case was heard in a two-day tribunal hearing in London. 

According to the Guardian, Iran traders are supporting the British position. "Publicity in newspapers brings our members, who undertake legal trade with Iran, to the attention of the US authorities, who pursue them, and to their own banks, who withdraw banking facilities," Martin Johnston, director general of the British-Iranian chamber of commerce told the newspaper.


FOI in Scotland

Scotland independence and EU membership questioned with FOI request

The Scottish National Party's has refused to give Labour MEP Catherine Stihler information on whether an independent Scotland can join the European Union.

Stihler's FOI request asked if the SNP, which champions Scottish secession, but wants to stay in the EU, had sought legal advice on the matter. The party's response, according to Stihler was: "We consider that to reveal whether the information you have requested exists, or is held by the Scottish government, would be contrary to the public interest."

Stihler said she would appeal the refusal, saying the information is in the public interest and questioned whether the SNP is as certain as it appears.

"If he is so confident that a separate Scotland would automatically be part of the EU, then why on earth have I received a letter full of arrogant secrecy?" Stihler said. "If they had nothing to hide, they wouldn't be trying to hide it."

The European Commission has said that Scotland's entry as a member state would have to be "negotiated," and terms may include joining the Euro. Stihler said there is a risk Scotland will end up outside the UK and the EU, which, she said, will be disastrous for the economy.

The SNP believes Scotland's membership of the EU is straightforward. Leader Alex Salmond wrote in the Scotsman that, "Scotland is already a member of the EU and that would continue. It is not easy to leave the EU as we saw with the attempts by Greenland when they won autonomy from Denmark."

Stirling's Tobacco research centre targeted by Philip Morris

In 2009, law firm Clifford Chance made a request on behalf of Philip Morris International to University of Stirling's Centre for Tobacco Control Studies centre. It did not divulge a 'name' for the purposes of the request, and thus the University's refusal to answer the request was upheld by the Scottish Information Commissioner.

However, the requests were made again, this time naming PMI, and the University again refused, citing the vexatious applicant exemption. PMI appealed, and has won (see the decisions here and here). The University now plan to engage the cost-limit exemption.

The case again highlights the problems researchers face when undertaking research in controversial areas (a topic recently discussed at a series of workshops across the UK).

The University's research involves confidential interviews with thousands of children aged between 11 and 16 about their attitudes towards smoking and cigarette packaging. PMI's request comes as a ban on cigarette packet branding is being discussed.

The centre, which is part of the University's Institute for Social Marketing, was established in 1999 by Cancer Research UK and aims to discover why children start smoking. 

The researchers believe release of the data will seriously harm co-operation with other academics who fear that sharing their own unpublished data with Stirling will lead to it being handed over to the tobacco industry. It will also harm the relationship with research participants.

"They wanted everything we had ever done on this," said Professor Gerard Hastings, the institute's director. "These are confidential comments about how youngsters feel about tobacco marketing. This is the sort of research that would get a tobacco company into trouble if it did it itself."

"What is more, these kids have been reassured that only bona fide researchers will have access to their data. No way can Philip Morris fit into that definition For me the crux is the trust we have with young people. How easy will it be for us to get co-operation from young people in the future?"

Hastings also mentioned some of the same frustrations that Prof. Phil Jones articulated following his Climate Research Unit's inundation with FOI requests. He noted Philip Morris's demands have taken up large amounts of time and resources, diverting his department's attention from its primary role of investigating smoking behaviour. "A research unit like ours simply can't afford this."

Philip Morris argue they do not want any personal data of the study's participants, and "as provided by the FOI Act, confidential and private information concerning individuals should not be disclosed," said Anne Edwards, director of external communications at Philip Morris. "We made the request in order to understand more about a research project conducted by the University of Stirling on plain packaging for cigarettes."

Heather Brooke has argues that PMI is entitled to use the FOI Act like any one else, and notes the very British reluctance to share public data with corporations. Others, like Campaign for Freedom of Information Director Maurice Frankel, note Stirling may wish to consider using the Scottish FOI Act's section 27 exception, which protects disclosing information that would be detrimental to a programme of research. This is exemption is unique to Scottish researchers over their other British counterparts. It was inserted into the Scottish Act after lobbying by universities during the bill's drafting.

The Independent also notes tobacco companies have used FOI to obtain minutes of meetings between Department of health officials and cancer researchers, as part of a 'global campaign' by tobacco companies to target public organisations with FOI.



Legislation passed to hasten FOI process

The American Senate passed the "Faster FOIA Act," which aims to establish a panel to evaluate the reasons for request backlogs, and make recommendation to the congress and government agencies on how to improve the way the act works. 

"This Faster FOIA Act would identify methods to reduce delays in the processing of FOIA requests and ensure the efficient and equitable administration of FOIA throughout the federal government," said Senator John Cornyn, who introduced the bill, in a press release.

This is the second time the legislation passes in the Senate. The first time, the bill was killed as part of an effort to raise the debt ceiling.

The House Rules Committee approved a rule allowing House Speaker John Boehner to replace the text of the Faster FOIA Act (S. 627), which was approved by the Senate in May, with his budget proposal, to expedite Senate consideration.

It was reintroduced by senators Patrick Leahy (a democrat) and Cornyn (a republican).

The National Security Archive at George Washington University greeted the 45th anniversary of the signing of the FOI Act on July 4th with sombre news about its efficiency.

It conducted a survey of 35 federal agencies. The results, released on the 45th anniversary of the signing of the FOI Act, showed that every agency had requests that were more than 2 years old, and many had a number of requests that were 10 or more years old.

"[The Knight Survey] shows that the oldest requests in the U.S. government were submitted before the fall of the Soviet Union. These unfulfilled requests - some are for documents that are themselves more than 50 years old - are victims of an endless referral process in which any agency that claims "equity" can censor their release," said a July 4 press release on the NSA website.


Another Indian FOI activist killed

Freedom of information activist and blogger Shehla Masood was shot in the neck when she was on her way to a demonstration where tens of thousands of people rallied in support of jailed anti-corruption leader Anna Hazare.

Masood, 29, had campaigned for the enforcement of the Indian Right to Information Act for the past two years, according to Reporters Without Borders, who called for an independent investigation on her death. The activist had complained that a police officer had been harassing her, and when nothing was done, she wrote the local police chief saying she feared for her life.

Her death is part of a larger trend of attacks on people who have tried to expose corruption through the newly introduced RTI Act. According to the Hindustan Times, at least 10 RTI activists were killed last year.

The newspaper, which also published a list of the RTI activists killed last year, said they are routinely harassed and " slapped with fraudulent cases to make sure they do not speak up ."

Shekhar Singh, RTI activist and founder member of the National Campaign for people's Right to Information said the best way to prevent these attacks is making sure the information the activists were seeking is published as soon as possible.

"The only deterrent against such attacks is to quickly make public the information that the activist was trying to get out," she said. "When those with vested interests realise that such attacks will only expose them quicker, they will refrain from them."



The OSCE launches a freedom of expression report

A report by the Organization for Security and Cooperation in Europe showed that only 30 per cent of the member states surveyed recognise access to the Internet as a basic human right.

"Freedom of Expression and the Internet" - a study of existing legislation and practice regarding the free flow of information and media diversity on the Internet, is based on responses to a questionnaire sent out to OSCE participating states in September 2010, and "presents the conclusions of the first comprehensive research on Internet content regulation in the OSCE region."

Almost 18 per cent of the participating States did not respond to the questionnaire. These are some of the report's findings:

  • In more than 12 per cent of the participating States, access to the Internet can be restricted to protect national security and public health or in times of state emergencies (more than 60 percent of the citizens of the OSCE area are Internet users)
  • More than half of the participating countries said they have no legal provisions on the right to access the Internet.
  • Only seven States (12.5 per cent) responded that they have general legal provisions which could restrict users' online access.
  • Forty-one per cent of participating countries have no legal provisions "outlawing the denial, gross minimisation, approval or justification of genocide or crimes against humanity in their country."
  • Only Finland has specific legal provisions regulating "net neutrality" in their jurisdiction

Since July 2010, all Finnish citizens have a legal right to access a one megabit per second broadband connection. Technology experts have said Finland is the first country in the world to do so.

"Network neutrality is an important prerequisite for the Internet to be equally accessible and affordable to all," stated the report. "It is, therefore, troubling that more than 80% of the participating States do not have legal provisions in place to guarantee net neutrality. Finland and Norway stand out as best practice examples with Finland having anchored network neutrality in its corpus of laws while Norway, together with the industry and Internet consumers, developed workable guidelines."

In June, the OSCE issued a Joint Declaration on the matter together with the United Nations, the Organization of American States and the African Commission on Human and Peoples' Rights, stating that countries have the obligation to encourage access to the Internet for all.

"Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds. "

Links to the ICO decisions of Aug 2011

First-tier Tribunal (Information Rights) decisions of August 2011