The Constitution Unit


Monthly Update: February 2012

Freedom of information in the UK

'Save FOI'

The Justice Committee of the Commons, chaired by Alan Beith, is scrutinising the Freedom of Information Act. It may be considering expanding the grounds for charging for FOI requests, or extending the remit of the law to cover new bodies.

Some see the Justice Committee's review as a threat, and thus Paul Gibbons, an FOI Officer is the Higher Education Sector, and author of the blog FOI man, has launched a "Save FOI" campaign and website. The campaign has started an e-petition, and urges the public to contact their MPs in support of FOI. Paul Gibbons points out, "The UK doesn't exist in isolation. Countries across the globe are adopting FOI legislation. As Nigeria and the Philippines debate the opening up of their governments, is it right that the UK can be considering reducing the rights of its citizens?"

We've put together a short summary of the most notable written submissions made to the committee.

You can watch the sessions of oral evidence to the Justice committee from media representatives and Universities UK here (28 February), and the Campaign for Freedom of Information, WhatDoTheyKnow and the Constitution Unit here (21 February).

Risk Register

The government has been ordered by the Information Commissioner to release its study of the risks of the proposed NHS reform. Local NHS risk registers have been released showing grave concerns of practitioners regarding the financial viability and competency of proposed GPs' commissioning boards.  The government is refusing to release the Health Department's register, pending an appeal of the ICO decision. By the time the appeal is decided further major changes to the Health and Social Care Bill will be difficult with the Lords' report stage complete.


Government Vetoes Release of Information for Third Time

Dominic Grieve, the Attorney General, has used his power under s. 53 of the Freedom of Information Act to refuse to publish the minutes of Cabinet discussions of devolution held between 1997 and 1998.

Grieve explained his decision to use the veto was based on his belief that to publish these minutes would undermine the doctrine of collective responsibility.

In some other Westminster system democracies, such as Canada and Australia, Cabinet discussions, as a class, are exempt from FOI- a provision designed to protect collective responsibility. However, the British Act treats each document individually, rather than as a member of a class, and considers the harm its release would cause. This prevents the possibility of suppressing embarrassing documents merely by placing them in a category.

The veto has been used twice before; once to avoid releasing these same devolution minutes, and once to avoid releasing minutes of the Cabinet discussions in the run-up to the war in Iraq. On both occasions the reason given was also the need to protect collective responsibility.

However, the minutes of the Cabinet discussion of the 1986 Westland Affair have been released under FOI, despite this documenting a Cabinet disagreement which prompted Michael Heseltine to resign. The fact that the breakdown in collective responsibility involved was already well known may have counted in favour of the publication of these papers. It might also have been relevant that, although, devolution and Iraq remain live issues, the Westland Affair, which involved a commercial bid for a helicopter manufacturer, is now settled.

The Information Commissioner has submitted a report to Parliament expressing disappointment that the veto pre-empted appeal to the Information Tribunal. He also suggested that it might be better for the government to attempt to pass a blanket cabinet papers exemption from FOI, than for it to continue to rely on its veto power, a point he also stressed the previous occasion the veto was used.

Supreme Court rules on Balen Report

The case of BBC v Sugar is finally closed after the Supreme Court ruled that the BBC was not required to release the Balen Report.

The report is an assessment of the Corporation's coverage of the Middle East which was produced by the BBC in 2004.

The case provides an object lesson in English legal structures, after being heard in different Courts and tribunals on ten separate occasions.

The issue arose when Orla Guerin, the former Middle East correspondent for the BBC, was accused of anti-Semitism by the Israeli government in 2004. Mr Sugar believed that she was biased against Israel and that the Balen Report would provide him with evidence to support this contention. He asked for it to be released under FOI.

However, as far as the BBC is concerned, the Freedom of Information Act only extends to materials held otherwise than for the purposes of journalism, art or literature. The Supreme Court held that this meant that the BBC was not required to release any document which was held for these "to any significant degree", even if it was also held for other purposes.

The BBC has welcomed the decision as one which gives them a safe space for "honest and open internal debate free from external pressures".


ICO 'demystifies' FOI

The Information Commission has attempted to make its advice on using the Freedom of Information Act more user-friendly. Its new guide to using the Act was published this month. Commissioner Christopher Graham has said: "We've done away with legalistic terms in favour of plain and simple language and, for the first time, all of the basic information and advice now lives in one place."



New Scottish Information Commissioner

Kevin Dunion has resigned from his post as Scotland's Information Commission after serving two terms and establishing a good reputation with public authorities and especially with requestors. He used his final ruling to criticise authorities who are still not fulfilling their obligations under FOI

Dunion will be replaced by Rosemary Agnew, who was formerly the CEO of the Scottish Legal Complaints Commission. Dunion ruled against the Commission five times when she was in that post.

Olympics tickets hidden from FOI

So far, the planning of the Olympic Games appears to be on time and under budget, and the number of people who have been unable to obtain tickets has been the most controversial issue. However, while the Olympic Delivery Authority is a public body which is subject to FOI, the body responsible for the ticketing of the games is LOCOG. It is mainly privately funded, and is not subject to freedom of information law.

This structure of Olympic organisation means that the information which thus far has been arguably of greatest interest to the public - ticketing - is not available. This is despite the fact that LOCOG may hold information which concerns the public sector- such as the numbers of tickets donated to or purchased by public bodies.

To its credit, the BBC has published information regarding its purchases.

International News


Cambodian Opposition politician Son Chhay has drafted a freedom of information bill and hopes to put it before the National Assembly soon. He accused the government of "acting in darkness," and against the national interest.

Chhay says the public have the right to know the details of the revenue generated by drilling rights, gold mines and tickets to Angkor Wat, an ancient temple run by a private company.

The need is pressing, Chhay says, because the government intends to establish a stock market and, without a freedom of information law, "no one will come to buy stocks."

Government spokesman Phay Siphan said the government is working toward more freedom of information, but has to ensure that "the right documents" are kept confidential, and that information is used responsibly by the media and other parties.

According to the Cambodian Centre for Human Rights, "the situation of freedom of expression in Cambodia is dire." In 2011 the leaders of several newspapers were arrested on criminal defamation charges after printing the views of opposition politicians.

Other Emerging Freedom of Information Acts

As part of a broader policy of democratic reform, the government of Tonga has published a 'discussion document' on freedom of information and invited written submissions on the subject. 

Zambia is also holding consultations on FOI, and the government there has committed to tabling a draft FOI bill in parliament by July this year. 

The Isle of Man have been discussing introducing freedom of information legislation for some time. The government have a draft Bill already, and now say that they expect to put before the House of Keys by they summer. However, they also sound a note of caution, based on cost concerns, and point out that Jersey expects that the initial cost of FOI for them will be one million pounds. 

And Father Alexander Lucie-Smith, writing in the Catholic Herald, has proposed that the Vatican adopt a freedom of information bill. The Holy See, he says, is constantly besieged by requests that they release damaging secret documents which they are alleged to hold, and in 1982 what appeared to be a tragic but straightforward abduction of a girl with a Vatican passport attracted widespread rumours of intrigue and conspiracy. A freedom of information act would fetter the wilder speculation, Fr Lucie-Smith says.

Data Protection

EU Data Protection Law

The European Commission has unveiled a draft European Data Protection Regulation, which is intended to replace the Data Protection Directive. The new regulations will be significantly more demanding than the old ones, and the most serious breaches of data protection by companies will be punishable with a fine of up to two per cent of global turnover.

Companies who provide goods and/or services in the EU, but have no physical presence in any Union country will be bound by EU data protection law for the first time. There will also be a new 'right to be forgotten' allowing individuals to force organisations to destroy data that relates to them.

The German Data Protection Association has welcomed the proposal to update EU law on data protection issues which cross national borders, such as regulation of the internet. It is also pleased to see the EU operations of companies based outside of the Union caught within the organisation's data protection regulation for the first time.

The German DPA takes the view that data protection is a human rights issue, perhaps because of the constitutional history of data protection law in the West, and, conversely, the relatively recent experience of the "Secret State" in the East. The DPA, accordingly, objects to the fact that the EU use of a regulation, as opposed to a directive, will mean that member states will have very little national authority over the area. Instead, the ultimate authority over data protection will be the unelected European Commission, and the European Court of Justice, which is not an authority on human rights.

The French Data Protection Authority, CNIL, reacted immediately and negatively to the proposed regulation. It stated that its own status would be reduced to that of a "mailbox" by the new law. This is because the location of the company, and not the citizen, would determine which regulator would investigate complaints. So, French citizens would have to seek redress for data protection violations from the regulator in the country in which the offending company was located, and not from the CNIL. (Though non-French citizens complaining about French companies would have to come to the French authority). Since some regulators might enforce the regulation better than others, this could encourage businesses to situate themselves in countries where the DPA was weakest, known as 'forum shopping'.

EDRI-gram, a European Digital Civil Rights newsletter, highlighted the fact that the use of a regulation, and not a directive, which disturbs the German DPA, should comfort the French CNIL, since it is intended to render the data protection regime of all EU states identical. In any event, EDRI says 'forum shopping' is much more often based on tax or labour law than on data protection legislation.

In Britain, the Information Commissioner has commented on the proposed regulation. He broadly welcomes the provisions, but says that, "in a number of areas the proposal is unnecessarily and unhelpfully over prescriptive." For example, he doubts the wisdom of universally requiring organisations to seek the permission of the local DPA before certain kinds of international transfer of data.

The Information Commissioner also points out that, although the regulation will, in principal, catch organisations based outside of the EU but providing goods and services within it, it is not clear how it can be enforced against such organisations.

A final concern raised by the ICO is that the proposed directive concerning the processing of data by law enforcement agencies is much less ambitious than the general regulation, despite the fact that police and other authorities have great power over individual citizens. The Information Commission sees no justification for exceptions being made for this sector.

China Data Protection

China's Internet privacy regulations take effect from 15 March 2012. They provide that Internet Information Service Providers must:

  • only collect users' personal information if they need it to provide them with services.
  • obtain users' prior consent when collecting their personal information or providing that information to others.
  • expressly inform users of the method, content and purpose of the collection and processing of their personal information.
  • not use users' personal information beyond the stated purpose.
  • protect users' personal information and take immediate action if the information leaks.

Breaching these regulations can result in fines from RMB 10,000 to RMB 30,000 (approximately £1000- £3000).

Latest ICO cases here

Latest First Tier (Information Rights) decisions here.