The Constitution Unit


Monthly Update: January 2011

Freedom of Information in the UK

Ministry of Justice announce FOI reforms

This month the Ministry of Justice announced its intention to extend the scope of FOI legislation to include a greater number of organisations considered to have a function of a public nature. Under the reforms, bodies such as the Association of Chief Police Officers (ACPO), the Financial Services Ombudsman, as well as any company wholly owned by any number of public authorities would be brought within the scope of the Act. The plans also included proposals to decrease the period for which government records are kept secret from 30 to 20 years. However, many of these proposals have a lengthy history, as the Unit's Ben Worthy identified in his blog post on the topic, and some of these bodies were even brought within the coverage of FOI as a result of decisions taken during Gordon Brown's premiership.

The announcement has been largely welcomed by interested parties and by those more immediately affected. The campaign director of Big Brother Watch, Daniel Hamilton, praised the reform as "a very welcome step towards increasing transparency in government", while the president of the ACPO, Sir Hugh Orde, expressed his enthusiasm for the changes, saying that " [a]ny organisation that operates as part of a key public service should be accountable and open to public scrutiny". However, Martin Rosenbaum highlighted some significant bodies that were excluded from the plans, including Network Rail as well as the private utility and water companies. He also noted that the plans fell short of some pre-election proposals by the Liberal democrats, in particular the removal of the ministerial veto on tribunal decisions requiring the disclosure of information.

The proposals also include a review of FOI legislation to be carried out later this year, and Lord McNally, the Minister responsible for freedom of information, has hinted at potential amendments that may come out of the process. In an interview with Michael Rosenbaum, Lord McNally remarked that he is "still in favour of abolishing the ministerial veto", but indicated that there might have to be a corresponding compromise in the form of an absolute exemption for cabinet minutes.

A controversial aspect of the proposed reform is the change to the exemption for Royal correspondence. Since 19 January, communications with the Monarch, the Heir to the Throne and second in line to the Throne are subject to an absolute exemption, whereas a public interest test was previously the case. The lifespan of the exemption, however, has been reduced from 30 years to 20 years, or 5 years after the death of the relevant person, whichever is the longer time. Republic, a republican pressure group, condemned the change, claiming that it "would make it almost impossible to hold the royal household to account for their actions and spending". Speaking to The Independent, Professor Vernon Bogdanor put forward the case of the Royals, identifying political neutrality as a key driving force in the need to maintain the secrecy of Royal correspondence.

Scottish FOI reform for the next Parliamentary session

Bruce Crawford, the Scottish Minister for Parliamentary Business, announced on 27 of January that the forthcoming session of the Scottish Parliament would see reforms being made to strengthen the Freedom of Information (Scotland) Act. The main focus of the reforms will be a reduction in the period of time before historical records can be released, and a reduction in the limitation period for the offence of destroying records requested under the FOI(S)A. Currently, the appeals process in relation to FOI requests can take longer than the time limits to bring a prosecution under the Act, making it difficult to prosecute the offence.

In addressing the calls to extend the Act to include a greater number of organisations, Mr Crawford commented that "Ministers believe it would be premature to extend coverage before the deficiencies in the Act can be put right and the opportunity is taken to strengthen and update the current legislation". Reforms under the relevant codes of practice were also raised as a potential means to amend the FOI scheme.

Responding to the news, Scottish Information Commissioner Kevin Dunion, said that Scotland were "in danger of falling behind in terms of the scope of Freedom of Information…Something like 81 per cent of people are in favour of hospitals being brought within the scope of Freedom of Information." Proposals were announced in December 2009 to extend the application of the FOI(S)A to cover private businesses who run prisons, trusts running local authority sports, leisure and cultural facilities, as well as the Glasgow Housing Association. The current reforms, however, will not take up these earlier proposals.

Carole Ewart from the Campaign for Freedom of Information in Scotland said: "We are deeply disappointed that the government has reversed its position on extending the Act because of opposition from the private sector bodies themselves. It would have been obvious to ministers before making these proposals that the contractors did not want to be covered, and we are amazed that merely because they have said they don't like the idea the government has shelved it."

However, the Confederation of British Industry (CBI) in Scotland, who lobbied strongly against the extension of FOI, warmly welcomed the government's announcement. "Extending freedom of information obligations to private sector suppliers of public services would have been unnecessary, costly, and at odds with promises to simplify regulation and public procurement, so we are pleased that ministers have listened," said assistant director, David Lonsdale.

ICO publishes guidelines for communications professionals

Released on 12 January, the "top tips" have been presented in order to help communications professionals view FOI as part of their communications strategy. The guidelines include suggestions for dealing with potential negative press exposure, encouraging bodies to factor FOI requests into their risk assessment process, as well as advice on practical issues, such as liaising with journalists seeking information. The author of the publication, Susan Fox, expressed her hope that the tips would "serve as a useful checklist to help communications professionals ensure that freedom of information contributes to a good corporate reputation".

Upper tribunal to rule on when reliance on exceptions may be raised late in the appeals process

Defra is appealing a decision of the first-tier tribunal not to consider exempting information from the scope of freedom of information laws, on the basis that the exception was not relied upon prior to appeal to the tribunals. This case may, in part, address the concerns expressed by Information Commissioner, Christopher Graham, who has criticised public authorities who shift their reasons for opposing disclosure when FOI decisions are not made in their favour. Although this decision turns on Environmental Information Regulations, the same issue arises under the FOIA, and so this decision should provide clarity to an area of FOI law that is currently opaque.

FOI and Parliament

Refusal to release rendition documents continues under new government

The chair of the All Party Group on Extraordinary Rendition has spoken out on the government's refusal to release documents relating to the UK's involvement in extraordinary rendition. In his comments, Andrew Tyrie MP suggested that "[w]ithout transparency there can be no closure on rendition. The scope and limits of UK involvement are still not known and won't be until information such as that requested by me under FOI is made available." Tyrie expressed his hope that the new government might lead to a cultural shift in relation to secrecy.

MPs call for debate on the role of FOI in scientific research

A group of MPs investigating the inquiries following "climategate" last year, have raised concerns about how the FOI Act applies to university research. Although the focus of the report was on the two inquiries that followed the scandal, Andrew Miller, speaking as chairman of the Committee, highlighted the "confusion about how freedom-of-information legislation should be applied to scientific research" commenting that it "must be resolved... as a matter of urgency".

FOI and Local Government

Pro-active publication of council expenses faces difficulties

FOI has come under criticism from a number of local authorities following the setting of a deadline for the publication of expenses in excess of £500. Helen Goodman MP took up the case of councils in criticising the communities secretary, Eric Pickles, for the move. She claimed that he was merely 'posturing' in placing financial burdens on councils at the same time as asking them to cut £100 million from their budgets. Mr Pickles MP responded by questioning the claims of Durham Council regarding the necessity of hiring additional staff in order to meet the requirements.

Parliamentary questions from 17 January confirmed that 193 councils of the 326 in England had published the data online as requested. As the deadline looms at the end of this month, there is speculation that many councils will fail to publish the information on time.

FOI elsewhere

Constitution Unit article provokes debate in Canada

Robert Hazell and Ben Worthy's article, 'Assessing the performance of FOI' has provoked debate in Canada this month in relation to the government's record on FOI. In light of the study, Canadian news sources have focused on a perceived failure of the Harper Government to meet the promises of reform that it made prior to the 2006 elections. In a statement on the issue, Canada's Information Commissioner, Suzanne Legault recognised the existence of faults in the Canadian system of FOI, saying "[w]e can use our own data, and come to the conclusion that our system is in decline." Applauding the article, Ottawa lawyer, Michael Drapeau expressed a desire that it should be a "call to action" for the general public to reinvigorate their system of FOI.


US Supreme Court holds hearing on whether companies can have personal privacy

The US Supreme Court heard arguments this month as to whether a a corporation can be considered a person for the purposes of the privacy provisions of the Freedom of Information Act. If the court rules in favour of the AT&T et al in their case against the Federal Commutation Commission, then large amounts of company information will be exempt from US FOI legislation. This case provides the US Supreme Court with an opportunity to bring some clarity to the ongoing debate about corporate identity and personal privacy.

House Oversight Chairman to investigate potential abuse of FOI by Obama administration

Darrell Issa, the Republican Chairman of the House Oversight Committee, has contacted the Department of Homeland Security requesting information about possible abuse of the Freedom of Information Act. The request came following allegations that the Obama administration had been vetting Freedom of Information requests for political sensitivities. The investigation surrounds a policy that allegedly required political appointees to review freedom of information requests. Matt Chandler, a spokesperson for the affected Department, defended its actions, claiming that it had not withheld or edited any records that agency lawyers considered it proper to release.

FOI progress in Africa

The new year has brought renewed attention to FOI in Africa. On 19 January, the Tanzanian government made a promise to fast track FOI legislation. Dr Emmanuel Nchimbi, the Minister for Information and Culture, made a promise that "[t]he government will do everything possible to make sure that the bill is enacted and implemented". This news comes four years after a draft bill was initially submitted to the government, and as media pressure builds for a tangible outcome.

Similarly, several politicians in Nigeria have expressed the desire and intent to pass an FOI bill in the coming session. Ahmed Aliu Wadada, the chairman of the House Committee on Information, was quoted in the Vanguard as saying that his Committee would pass the bill. This comes following the President of the Senate's expressed determination to pass the legislation. Adopting a more sceptical attitude, an article in the Daily Independent suggested that the forthcoming elections would ensure " that nothing will now happen until the start of the new dispensation come May 29".

Ireland- FOI reveals abuse of position amongst Revenue officials

A freedom of information request led to the release of details of Revenue investigations into improper behaviour of officials within the organisation. The release identified officials who were investigated for improperly sharing tax information with third parties, and breaking rules in using colleagues to deal with tax affairs. The information has led some to question the culture within the organisation as comments came to light that suggested such practices may be common place, despite violating a clear code of conduct.

Data Protection

Former Commissioner calls for reform of European data protection legislation

Richard Thomas, the former UK Information Commissioner, has called for the modernisation of the European framework for data protection. Recognising "the poor reputation [of European data protections laws] for being bureaucratic, uncertain and burdensome ", he welcomed the latest review of the rules, and laid out his thoughts on the subject of reform. The two papers published by Centre for Information Policy Leadership, at which Richard Thomas is the Global Strategy Adviser, highlight two priorities as key for any reform, that of accountability, and a developing a framework of binding global codes "to improve and streamline arrangements for international transfers".

Data protection day

28 January was Data Protection Day, with commentators taking stock of the global state of data protection. In India, head of the Data Protection Security Council of India gave a speech pre-empting the Indian privacy reforms expected in the first half of 2011. He took the opportunity to draw attention to the need for " a strong legal framework, proactive government initiatives, active involvement of, and contribution by the industry, and effective law enforcement mechanisms ". Disagreements over data exclusivity between India and the EU are considered the biggest stumbling block towards a Free trade Agreement between them. Events were held to mark Data Protection Day in Germany, the UK, the US and Canada.

Lords criticise SOCA database

A database used by the Serious Organised Crime Agency (SOCA) 'does not comply fully' with the Data Protection Act or the Human Rights Act, a report from the House of Lords has said.

The ELMER database is SOCA's principal tool in identifying suspicious activity that may involve funds which are the proceeds of criminal activity.

The report by the Lords EU Committee, Money laundering: data protection for suspicious activity reports, finds the ELMER database, holding 1.5 million records, was accessible to too many organisations. The committee also said that the database was used disproportionately to report transactions with a 'very low' level of suspicion.

Concerns over the database were raised in 2009, when the Lords asked the Information Commissioner to investigate use of the ELMER database by SOCA. The committee's latest report was informed by the Information Commissioner's findings. Lord Hannay of Chiswick, chair of the committee said, "It is important that the government considers whether the current arrangements are still effective and can still be justified… We are glad that the commissioner agrees with our view that the database does not comply fully with the Data Protection Act and the Human Rights Act…We look forward to the response of SOCA and the government to the commissioner's recommendations."

ICO decisions

January 2011

Information Rights Tribunal

Latest decisions