The Constitution Unit


Monthly Update: January 2012

As more public bodies fall under the scope of the Freedom of Information Act and the consumer appetite for FOI-fuelled media coverage continues, 2012 is set to be an interesting year for transparency and accountability within the United Kingdom.

Policy-making in the UK

In Parliament, the Protection of Freedoms Bill 2010-11 has continued its journey through the House of Lords, passing through the Committee Stage and onto the Report Stage. The Bill will make a number of amendments to the Freedom of Information Act 2000, including making companies that are wholly owned by at least two or more public bodies subject to FOI requests, and obliging public bodies to release electronic data in recognisable and reusable formats. An attempt to introduce a caveat that would exempt universities from disclosing information from ongoing programmes of research was proposed but effectively rejected. As reported on the Campaign for Freedom of Information blog, the Ministry of Justice released a list of possible public bodies they believe will fall into the scope of the amended Act. The MoJ impact assessment of extending the coverage of FOIA can be accessed here.

The proposed changes have raised the possibility of some interesting scenarios, including firms such as McDonalds being subjected to FOI requests insofar as they are approved accreditors of National Vocational Qualifications (NVQs).

In Scotland, the out-going Information Commissioner Kevin Dunion has voiced his fears that there is a growing trend (in Scotland) of political responsibilities being transferred beyond the scope of FOI legislation and into trusts and private bodies. Although overall the Commissioner believes the state of FOI in Scotland is strong, in his last report he specifically recommends that:

  • Additional bodies, such as local authority trusts, should be designated under the Freedom of Information Scotland Act
  • Charges which deter requests for information should not be introduced
  • The Commissioner should be empowered to take evidence, under oath if necessary
  • Timescales to bring prosecutions for the offence of destroying information after a request for it has been made should be extended.

Dunion also named and shamed the Water Industry Commission as the most evasive public authority in Scotland in terms of complying with FOI requests.

Rosemary Agnew, the current Chief Executive of the Scottish Legal Complaints Commission, has been nominated as the new Scottish Information Commissioner.

The use of FOI legislation in the UK

BUAV v University of Newcastle Upon Tyne

A long-running FOI saga between the British Union for the Abolition of Vivisection (BUAV) and the University of Newcastle Upon Tyne came to an end in December when the University released a number of project licenses concerning animal experimentation, first requested in June 2008. Under FOIA 2000, the University had claimed it was exempt from releasing the information under sections 12 (Exemption where cost of compliance exceeds appropriate limit), 38 (Health and safety), 43 (Commercial interests), and 44 (Prohibitions on disclosure.) It was this latter section that proved to be the site of the most intense legal wrangling, as it allows for information to be exempt from disclosure if it is "prohibited by or under any enactment." The University argued that the Animal (Scientific Procedures) Act 1986 (ASPA) located ownership of the requested licenses with particular individuals named on the project's certification, and as such the University did not "hold" the information and was not in a position to release it. Furthermore, it argued that Section 24 of ASPA suggested the information "holder" would be liable to prosecution if they disclosed it.

After a lengthily appeals process, a tribunal found that the individual "responsible" for the information "held" it on behalf of the University, and so the University did indeed hold the information, through him. Furthermore, disclosure did not leave the University liable under Section 24 of ASPA as the project licenses were not given to the University in confidence; in fact they were produced by the University itself.

This case is significant, as it clarifies further what it means to "hold" information within the context of FOIA 2000. If information is held to any extent on behalf of the public authority itself, the authority "holds" it within the meaning of the Act even where physically someone else holds the information. For a summary of the tribunal's findings, see University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC) (11 May 2011)

"Climategate" rumbles on

In a similar vein, the first-tier tribunal has recently ruled that the University of East Anglia also "holds" an email requested under FOI. The University had tried to claim that they did not physically "hold" the information as the police had seized the servers on which the backups of the email are stored; Furthermore they tried to argue that the backed up emails were not "held" for the purposes of FOI. As with The University of Newcastle upon Tyne v BUAV, the tribunal found these arguments to be "over-technical" and run against the grain of common sense. See Keiller v IC and University of East Anglia (EA/2011/0152).

Also in the news, climate scientists have backed an FOI request directed at the Global Warming Policy Foundation, seeking them to disclose the source of their funding.

This month also saw the ICO release a "plain English" guide for public bodies to better understand their obligations under FOI.

Gove defies ICO by following the Cabinet Office

The ICO is conducting an investigation into the conduct of the Department of Education and its use of electronic mail after officials were accused of deleting personal emails that had been used for government business and requested under FOI. The ICO is due to publish its findings within the next couple of months. Education Secretary Michael Gove has come under fire, and is said to be waiting on further official advice before complying with the Information Commissioner's guidance. He told the Education Select Committee that the advice on private emails accounts and FOI differed between his own departmental advisers and the Cabinet Office, and that in the meantime he would follow the Cabinet Office.

Refused Honours

The Cabinet Office recently disclosed a list of now deceased individuals who refused honours between 1951 and 1999. Whitehall had previously fought the FOI action to release this data, presumably on the grounds that it would undermine the integrity of the honours system and damage the prestige of the establishment. The list documents how some individuals turned down honours repeatedly and details 287 instances of rejection of recognition. Bearing in mind that the list names i) only the deceased and ii) stops at 1999, it represents merely a proportion of the total number of honours that have been turned down.

Tweeted FOI successful

A twitter user has successfully made an FOI request to their local police constabulary through the popular micro-blogging platform. This follows an announcement from the Information Commissioner's Office (ICO) earlier last year that requests received over Twitter "…can be valid requests in freedom of information terms and authorities that have Twitter accounts should plan for the possibility of receiving them."

Council leader finds FOI 'frivolous'

The leader of South Tyneside Council has expressed his frustration at members of the public who make frivolous use of the Freedom of Information Act. "Freedom of Information requests hold public institutions to account, and I have no problem with that. But many of the questions asked are simply not in the public interest. They are just silly questions which waste officers' time unnecessarily."  In total last year local authorities received more than 197,000 FOI requests at an estimated cost to the taxpayer of £31.6m.

A further identified problem with FOI reporting, as recently highlighted on the Data blog, is the focus on 'headlining grabbing' and abstract figures without sufficiently considering context can lead to the spread of disinformation. Fullfact.org have pulled together a analysis of media claims that 200 families are costing the taxpayer £12 million in benefit claims. Meanwhile, the Northampton Echo and Sky News have recently given  journalists' perspectives on how FOI can be a valuable tool.

UK Parliament

MPs' expenses continue to generate headlines and demand airtime in the national media. On the other hand, Tom Watson MP commented that in regards to parliamentary scrutiny, "FOI requests were probably a more useful tool than parliamentary questions." Dennis MacShane MP recently criticised the coalition government for refusing to answer his Freedom of Information request regarding a free school planned within his constituency.

Elsewhere around the world

South Africa

In South Africa, public consultations will be held in all nine provinces regarding the controversial Protection of State Information Bill. As currently formulated, the Bill stipulates prison sentences of 15-20 years for anyone possessing classified government documents, with no option of defence in the name of the public interest. Opponents of the Bill such as the Right2Know Campaign argue that the inclusion of a "public interest" clause is absolutely essential for the health of South African democracy and to allow the media to uncover corruption.

Many commentators are sceptical as to whether the public consultations will make any difference. As noted by Human Rights Watch, "In light of the manner in which the Protection of State Information Bill was pushed to a vote, the position of the ANC on the establishment of a Media Appeals Tribunal is worrying." If the Bill is passed into law, it is likely to adversely affect South Africa's Press Freedom Ranking.

United States

Two John S. Knight journalism fellows from Harvard University are conducting a global survey of FOI users. They hope to use the survey results to find new ways of increasing the effectiveness and usage of Freedom of Information legislation. You can take part in the survey here.

The Obama administration is frequently criticised over its record on FOI and transparency, accused of making "public relations feints towards more transparency" while in practice actually being more secretive than the previous Bush administration. The speed at which government agencies in the United States respond to FOIA requests has come under fresh scrutiny this month, as The New York Times received a response to a request first made in June 1997. US Courts have previously ruled that government agencies must respond to Right of Information requests within 20 days of receiving them. The good news is that the federal government is planning to streamline the FOIA request process for central public bodies, according to the FOIA Ombudsman. 2012 will see the implementation of "a multi-agency FOIA portal that automates FOIA processing and reporting, stores FOIA requests and responses in a repository and keeps records electronically. Not to mention allows requesters to submit requests to fewer government websites, track the status of requests and find, view and download FOIA requests and agency responses, all in a secure online environment."

In a separate development, the Obama administration could be forced to release at least some of the post-mortem photographs of Osama Bin Laden, taken after he was shot and killed by US Navy Seals last year. The Department of Justice has gone on record as admitting that "sensitive information about specific intelligence methods or specific military operations could be redacted from the records." Judicial Watch, an activist group, is pursuing legal action against the government for failing to disclose "all photographs and/or video recordings" following a Freedom of Information request.


The Indian Information Commission has begun publically listing pending cases on its website, in what is hoped to be another example of effectively using ICTs to achieve better standards of transparency and accountability.  

Data Protection

In the world of private healthcare, the blurring of boundaries between technology and biology have thrown up an interesting claim of right to information. Thousands of Americans are implanted with electronic pacemakers and defibrillators every year, the more sophisticated of which send real-time information about the patient back to the product's manufacturer. As one man has discovered however, the patient is not able to access all of the raw data directly from the device, and has to rely on the interpreted account from the product's manufacturer or their physician. Hugo Campo argues that all of the realtime, raw data would be even more valuable to him and that he should have a right to access information about his own body, being transmitted out of his own body.  You can follow Hugo's blog here.

Latest ICO cases here

Latest First Tier (Information Rights) decisions here.