The Constitution Unit


Monthly Update: December 2010

Freedom of Information in the UK

End of Year roundup

Martin Rosenbaum's Open Secrets blog has a good summary of how FOI has developed over 2010, covering Wikileaks, the ICO backlog, open data (and the changing face of journalism), Tony Blair, and the wait-and-see-game played by the Coalition Government. "I think we're at an intriguing stage in the development of freedom of information in the UK. A year ago the context surrounding FOI was dominated by the role it had played in the MPs' expenses saga and the repercussions. Now that we're moving on from that particular while important matter, we can discern some interesting general themes...Data, data, data. That's what we've been getting - and that's what we're going to get more of."

Channel 4 News says the "obvious question of 2010 was where does freedom of information end, and too much information begin." They note the 2010 trend of increasing intrusion into public authorities - whether it be taping MPs during constituency surgeries, Wikileaks or 'lobby-gate': "Did we learn much from Cable (or Julian Assange, or Lord Mandelson's autobiography, or the outing of David Laws over expenses claims) that we hadn't already guessed? Was it enough to justify breaching the assumed confidentiality of MPs' relationships with constituents, and risking less frank exchanges in future?"

They also note, in defining 2010 as 'the year of the secret that could not stay secret', public figures' willingness to share private information. "The parameters of privacy appear to be shifting for good."

They also wonder if information overload is masking the real stories: "But the bigger question is why we unearthed mountains of gossip but missed big buried truths - the scale of the cuts that would follow the election, precisely how many ministers thought Brown unelectable, what Andrew Lansley's technical-sounding asides about NHS reform actually meant. Amid the noisy cacophony of a multi-platform media, is mainstream journalism losing sight of which secrets matter?"

My Society watching the bonfire of the quangos 

MySociety has noted in its blog that many of the quangos up for abolition will soon disappear off the FOI radar too. It warns that time is running out: 

"This is a great opportunity to highlight that mySociety's Freedom of Information site WhatDoTheyKnow covers nearly all of these little-known bodies that spend public money (we currently have just over 3,800 public authorities listed on the site).  Given their impending doom, there is little time left to find out what they spent public funds on, as only their most important records will be transferred to the National Archives or successor bodies for permanent storage.  The remainder are likely to be shredded, or deleted, as only "records identified as valuable for future administrative need" are kept."

Cabinet manual addresses FOI

The Cabinet has launched Britain's first cabinet manual (draft), which lays out basic conventions for the proper conduct of government. Martin Rosenbaum from the BBC has found fault with a few of the statements made regarding FOI:

"For example, paragraph 389 states that information may be exempt from FOI if it 'relates' to defence or international relations or numerous other matters it lists. In fact, for most of these areas, what the Freedom of Information Act actually says is that the exemption can only apply if disclosing the information 'would, or would be likely to, prejudice' defence, et cetera...The same paragraph also asserts that another exemption is 'if the cost of complying with the request would exceed £600'. Strictly speaking this isn't an "exemption", but putting that more pedantic point to one side, the statement is still extremely misleading."

FOI and Parliament

Libel and WhatDoTheyKnow - Lord Lucas' amendment could help...

Francis Davey has blogged about the potential damage a libel case could do to WDTK - a charity with little means to run a test case on libel and publishing FOI requests:

"Consider the recent case... in which one of the alleged libels was contained in a 'briefing report' prepared by the local authority and sent to the Department of Education. If a member of the public made a successful FOI request via WDTK for that report, WDTK's software would automatically republish it on their site. The Claimants  might well ask WDTK to remove the disclosed material - what then is WDTK supposed to do?...
There is an absurdity about this since if one FOI request is successful then (because of the 'applicant blind' approach) so ought a subsequent one...
The common law might recognise this absurdity and decide that publication of FOI responses was a form of qualified privilege. There is a line of old authorities that the publication of a fair and accurate copy of (or extract from) any register kept pursuant to statute and which by law the public are entitled to inspect attracts the defence of qualified privilege...
That reasoning appears to be equally applicable to republication of an FOI request...
All this is not of much use to WDTK. The last thing they would wish to do is to litigate this question. What is interesting to lawyers is rarely rewarding to their clients. It would be much better if the question were settled by statute

Francis calls for a amendment to the Defamation Act 1996, and an anonymous comment has recommended Anthony Lester QC's bill as a way to do this, as "Bills drafted by Lord Lester have a habit of turning into laws."

Lib Dems 'furious' over Royal exemptions

The Daily Mail has reported Liberal Democrat MPs are angry that the Royal Family is set to get a blanket FOI exemption, against the spirit of the Coalition Agreement which endorsed further openness.

A new 'right to data' law, it is claimed, will not cover information held by public authorities about the royals, nor the royal households themselves. FOI requests to public authorities have disclosed Prince Charles' lobbying of government minsiters, and the costs of Prince Andrew's trade ambassador role.

Katherine Gunderson from CFOI notes that currently, Section 37(1)(a) of the Act "provides an exemption for communications with Her Majesty, other members of the Royal Family or with the Royal Household, but the exemption is currently a qualified one subject to the Act's public interest test."

The Constitutional Reform and Governance Act 2010, amended Section 37 creating a new absolute exemption for communications with the monarch, heir to the throne and second in line. However, this change still has to be enacted via a statutory instrument. The Mail reports a senior Lib Dem with access to the new bill's negotiations said he was 'livid' over the attempt to restrict the reforms. "It was written into the Coalition agreement that the scope of the Freedom of Information Act would be extended... Openness in Government is part of the spirit and philosophy of the party, and that should extend to finding out how the monarchy is spending taxpayers' money. We have made enough compromises as it is to take our place in the Coalition and we are not really in the mood to make any more."

FOI and Local Government

The Unit has produced our latest report of the state of FOI at local government level. The FOIA 2000 in 2009: The experience of local authorities in England is the report of our 2009 English local government survey, which elicited 117 responses from council FOI officials all across England. Findings from the survey include:

  • The number of requests made to English local councils has increased by 38 per cent from 2008 to 2009.
  • Requests are being processed faster, and at a lower cost per request.
  • The proportion of requests which resulted in full release of information has slightly decreased from 2008 levels, as has the proportion of requests processed within the 20 day time limit.

You can access our previous Local Government surveys on our Local Government project page under the Surveys tab.

Councillors asked to cut back on making FOIs

Tendring Councillors have been asked to make 'less formal' approaches for information after Finance controller Peter Halliday says their FOI requests are taking to much time and money to process.

Tendring does not keep any detailed records on the source of FOIs, but Halliday says from October to December, the council has received over 50 FOIs, three of which were from councillors. "Our officers are under a lot of pressure and we have to look at where they are spending their time. Every hour they spend on the requests, they are not spending on delivering services for the taxpayer."

However, councillors Pierre Oxley and Chris Griffiths disagree and believe Halliday's stance undermines the spirit of FOI. "This totally undermines the principle of the requests," says Oxley, who made two requests in the last two months. "The whole idea is it's official. You would potentially get only half the information." Griffiths, who has also used FOI, says he did not think asking a councillor for information was always the most appropriate first step. "If you ask people with a political background, then you get a political slant."

FOI elsewhere

Wikileaks divides opinion

While Wikileaks' Julian Assange has been granted bail, opinion among transparency advocates remains divided. Millions of diplomatic cables have been revealed and disseminated by leading news organizations - the New York Times, The Guardian, Le Monde, El Pais and Der Spiegel - unlike previous Wikileaks releases which were placed straight into the public domain.

This somewhat temped approach has been supported by Reporters Without Boarders head Jean-Francois Julliard. "We like this partnership with the newspapers and this work to put things in context, verify the information and draw lessons from it," he said.

Assange's current - and former - supporters are divided on his motives and what Wikileaks can achieve

An associate of Assange says there is something of the 'naive libertarian' in Assange's approach. "He makes that connection between government and conspiracy. He really does think that WikiLeaks is going to change the world … he constantly expects that it will achieve change through telling the truth."

Laurent Joffrin, editor of France's left-wing Liberation daily, a champion of media freedoms, has warned, "In a world criss-crossed by violent conflict, a state can not permanently operate under the constant gaze of opinion." The Financial Times agrees, stating, "Much, but not all state information should be public. In order for states to conduct their affairs effectively, and ensure the security of their citizens, some secrets must remain."

Filmmaker Michael Moore disagrees. "We were taken to war in Iraq on a lie...Hundreds of thousands are now dead. Just imagine if the men who planned this war crime back in 2002 had had a WikiLeaks to deal with. They might not have been able to pull it off."

Australian FOI advocate Stephen Collins is hopeful: "We can adopt a new worldview where we allow acts such as Cablegate to become the catalyst for change and we renew diplomacy, change journalism and open up government." His post is part of an interesting discussion among FOI advocates in Australia, where opinion of the consequences of 'cablegate' (and of Julian Assange himself - are deeply divided.

Scotland - Dunion warns cuts will effect FOI

Scottish Information Commissioner Kevin Dunion is warning that impending public spending cuts will negatively impact the processing of FOI requests. Adding to this, he believes the number of FOI requests will increase as public authorities come under pressure to cut costs and streamline services. "There is a recognition that the public will want to know why certain choices have been made, and how services are going to be affected," said Dunion.

His comments follow the findings of a survey of public sector managers, legal advisers, civil society organisations as well as other FOI specialists, conducted by the Scottish Information Commissioner's Office and Holyrood magazine. The E-Gov monitor reports that "64 per cent respondents say that they would have less resources to follow through FOI requests from the public. 21 per cent respondents believe that the current economic malaise strengthens the case for FOI." You can read the more from the survey on the Scottish Information Commissioner's website

International Aid transparency lacking

Publish What You Fund (PWYF) has developed an Aid Transparency Assessment. This is the first global assessment for aid transparency. It compared the transparency of 30 major donors, ranking their commitment to aid transparency, the transparency of aid to recipient governments and transparency of aid to civil society organisations.

Jonathan Glennie from the Guardian's Poverty Matter's blog notes, "the weight given to these three areas can be adjusted, but when weighted equally, the World Bank appears the most transparent donor, while Japan ranks as the least."

The Netherlands and the UK come second and third respectively, while France, the US and Italy are in the bottom ten.

PWYF were also limited in their assessment by a lack of primary data: "Our first major finding is that there is a lack of comparable and primary data available. This meant we couldn't do the type of bottom up assessment we wanted to and highlights the essential nature of what donors are doing in building an international standard." You can read the whole PWYF 2010 report here: Aid Transparency Assessment 2010

The Guardian has also published an interactive Global Corruption Index for 2010.

National Budgets Survey 2010 - limited improvement across the world

The International Budget Partnership (IBP), has published its latest Open Budget Index (OBI), which is the 'only independent, comparative, regular measure of budget transparency and accountability around the world'. The index is based on a survey carried out in 94 countries, measuring access to national budget processes and opportunities to participate, and the strength of formal oversight institutions.

The Guardian's Poverty Matters blog notes that "Overall the state of budget transparency is very poor. Despite progress being made, with almost all countries improving a little or a lot (there is always more information being published) 74 of the 94 countries do not provide comprehensive budget data to their citizens."

It is interesting to note that there have been some small victories, but what many countries' lack is not data, but a will to share it: "After the 2008 survey was published, Brazil sent an official to the IBP offices to ask for advice and now publishes a citizens' budget report. Peer pressure works... The most striking finding is that countries can improve their ranking simply by publishing the documents they produce anyway. The work is done, the data is known, but it is not shared."

Other notable findings include:

  • A number of middle-income countries do better than richer countries, including South Africa, which tops the index, meaning it has the most open budget in the world
  • Latin America does well (except for Bolivia and Honduras, which do terribly)
  • India and Sri Lanka are also near the top, beating Spain and Italy for budget transparency.
  • The most improved countries are Egypt, Liberia and Mongolia.

Politics, culture, economy: the reasons why FOI is not embraced

Journalism researchers from the University of Arizona have been studying the reason why FOI is so underdeveloped in the Arab world. Of the 22 Arab states, only one - Jordan - has FOI legislation. There are currently draft FOI bills in several Arab states, and the researchers wanted to look at the context in which these bills were progressing.

"Interestingly, the US Agency for International Development has provided funding support in the region for news media and civil society networks that are advancing government transparency ideology," said Jeannine Relly, a co-author of the study.

Study authors Relly and David Cuillier examined twelve political, cultural and economic factors that have been associated with countries that adopt freedom-of-information laws, such as press freedom, lack of corruption, women's rights, literacy, wealth and telecommunications infrastructure. The study is published in the recent issue of Government Information Quarterly. They found that Arab countries closely mirror other countries that haven't adopted freedom-of-information laws, suggesting that the political, cultural and economic environments are not conducive for government transparency in the Arab world.

In the area of the economy, some Arab countries should be able and prepared to set up the infrastructure necessary for implementing freedom-of-information laws. They share the wealth of many countries that have access laws. But as the study indicates, just because a country is wealthy doesn't mean its government will be forthcoming with information. Further, much like the Unit's conclusions in our book on Freedom of Information in the UK, the researchers found political will appears to be one of the most important factors in government transparency.

Data Protection

First fines for Data Protection breaches

The first two fines for Data Protection Act breaches have been issued by the ICO since it was given new powers in April to issue monetary penalty notices, up to £500,000 pounds. 

Herefordshire County Council has been issued a fine for £100,000 for two 'serious incidents' where employees accidentally faxed personal details - including criminal records and care proceedings of three children - to the wrong recipients. Employment services company A4e has been fined £60,000 for the loss of an unencrypted laptop which contained personal information relating to 24,000 people.

In relation to the first case, Information Commissioner Chris Graham said, "It is difficult to imagine information more sensitive than that relating to a child sex abuse case. I am concerned at this breach - not least because the local authority allowed it to happen twice within two weeks. The laptop theft, while less shocking, also warranted nothing less than a monetary penalty as thousands of people's privacy was potentially compromised by the company's failure to take the simple step of encrypting the data."

Home Office to meet groups over RIPA

Data Guidance has reported that after dismissing a wide public consultation as 'unnecessary', the Home Office is set to meet civil rights and privacy campaigners to discuss the changes planned for the Regulation of Investigatory Powers Act (RIPA).

The Home Office launched a consultation on RIPA in early November 2010. The proposed changes aim to bring the Act into line with EU law, following demands from the European Commission. The Home Office initially stated a meeting with civil rights groups would be unnecessary. "This is a targeted consultation, not a public consultation'', a spokesperson for the Home Office told DataGuidance, ''therefore a full 13 week period is not necessary. We had already liaised with the relevant parties who would need to respond on the issues."

The Open Rights Group (ORG), Privacy International and other digital and civil rights organisations wrote to the Home Office, arguing the consultation was too short and unfair.

The consultation period has now been extended by 10 days, to 17 December 2010, but the groups believe the Home Office needs to do more. The consultation period is ''still extraordinarily short, basically a way of stopping individuals from responding," says Jim Killock, Executive Director of ORG.  "It is a targeted consultation - one that is targeting the companies who are potentially going to violate the law that they are trying to correct. It's the same as meeting with burglars to discuss burglary charges.''