The Constitution Unit


Monthly Update: July 2010

FOI in the UK

ICO promises to get tough with serial S.10 breaches

Deputy Information Commissioner Graham Smith, speaking at the Westminster Legal Policy Forum, says the ICO is to launch a new enforcement policy to get tough on public bodies that consistently fail to meet deadlines for answering freedom of information and data access requests.

"We are saying we will work with you, but if there is no improvement we will issue an enforcement notice," he said.

Constitution Unit Director Robert Hazell also spoke at the forum, and warned FOI could suffer as the public sector faces budget cuts in the coming year.

"FOI teams, relatively recent in most Whitehall departments, are not likely to be regarded as frontline services." When staffing cuts had been introduced in other countries such staff had often been the first to go, he said.

Chilling effect alive and well

Barrister and historian Jonathan Sumption QC has spoken of his fears for future historians as Freedom of Information changes record keeping practises.

He argued that ministers and officials are so worried about leaks to newspaper and premature disclosure through the Freedom of Information Act that they have simply stopped writing things down

In a lecture to the Friends of the National Archive on 9 July, Sumption explained that he had asked senior civil servant friends, who had recently retired, about their record-keeping practices. "With one exception, every one of them admitted to having omitted significant information from internal documents, which in earlier times would have been included, and to having communicated them informally instead, so that they would not be recorded in writing."

Similarly, Oliver Morley, Acting chief executive of the National Archives says 'Some of the more indiscreet communications that have been found in official publications might not be there for the future." But he also said that greater transparency was a good thing and although the official records might not be as interesting as they used to be as a result, it will be more than made up for by the vast treasure trove of e-mail correspondence. "The huge volume of the digital record will provide rewarding material for the canny researcher."

Coins database not as extensive as hoped

Lisa Evans from Where does my money go? is angry that the COINS database doesn't include what she sees as the most important data: The Whole of Government Accounts. So she made an FOI request for the data, but it was rejected by Treasury on the grounds of protecting the space for free and frank policy discussion. "So," she argues, "when we hear about greater transparency on public spending, it is important to bear in mind that we have made great progress but we don't have the full picture yet."

Russell review of East Anglia: The Science is ok, FOI is not

The last of the three main reviews of the Climatic Research Unit (CRU) at East Anglia Universityhas been completed by former civil servant Sir Muir Russell.

Russell's team found the scientific methods used by the CRU were robust and they were easily able to replicate the CRU's results, which climate sceptics said was not possible.

However, the CRU was strongly criticised for its approach to FOI requests, which the review describes as "unhelpful and defensive". Further, Muir's review calls for science to embrace a new age of transparency: "Like it or not, this [demand for openness] indicates a transformation in the way science has to be conducted in this century."

Martin Rosenbaum points out that "While the review strongly criticises the conduct of those scientists who refused to embrace a culture of openness, it is important to note that it also places much of the blame on the broader university administration. It argues that the university's senior management should have accepted more responsibility for implementing compliance with FOI."

Similarly, a review by the Dutch Parliament into the Inter-governmental Panel on Climate Change (IPCC) has also upheld the scientific findings and reports of the IPCC, but argues more transparency would be beneficial.

On the same day the Russell review was published, the Information Commissioner's Office published a decision notice stating that UAE had breached the EIRs by not answering requests in the specified time frame.

Child detention manual published

After five-year FOI battle, children's rights campaigners have welcomed the decision by the government to publish a manual used by staff in children's detention centres. The government was ordered to publish the manual by the ICO but had been considering taking the case to the Tribunal.

However the manual - published by HM Prison Service in 2005 and classified as a restricted government document - has been severely criticised for describing techniques to be used to restrain children and illicit compliant behaviour. The manual was condemned last night by campaigners as "state authorisation of institutionalised child abuse".

Megrahi subject of Cameron-Obama talks

David Cameron and Barack Obama have met in Washington and say they 'violently agree' that the release by the Scottish government of Lockerbie bomber Megrahi on compassionate ground was wrong. Cameron is refusing a formal British inquiry into the release, saying there is no mystery about how the decision was taken. But as a concession, Cameron has ordered Cabinet Secretary Gus O'Donnell "to go back over all the paperwork to see if there is anything else that should be released, so that there is the clearest possible picture out there of what decision was taken and why."

There have been calls for Megrahi's medical records to be released, along with the minutes of two phone calls between BP lobbyists and the former justice secretary, Jack Straw, in January 2009. Earlier this year, Straw turned down a freedom of information request for this information

British officials say: "The previous government have already released a lot of information under FoI requests. If there is any further pertinent information deemed to be relevant, we would be happy to consider that." Ministers from the former government including Tony Blair, Gordon Brown and Straw would have to be consulted first, but would not have the power to veto any release, the officials said.

Court secrecy under fire

FOI activist Heather Brooke has criticised the secretive manners of UK legal system in her article in The Times.

Ms Brooke calls for action on making courts of justice more open for scrutiny. She particularly criticises the prohibition of tape recording during hearings, a decision itself not recorded: "To close a court, effectively, from public scrutiny in a ruling of which there is no record strikes me as something straight out of Kafka."

Death tolls from Iraq War: NGO makes case for government wifull neglect

Action On Armed Violence has used FOI requests to present their case that the UK government wilfully neglected their responsibilities to ascertain the extent of civilian causalities as a result of the war in Iraq from March 2003.

A State of Ignorance argues "that the UK government actively sought to maintain a position of ignorance regarding measurements of death, injury and deprivation resulting from violence in Iraq. This means not simply that UK officials did not know the impact of violence, but that they worked - in various ways - to avoid knowing. The FoI material that this report is based on suggests officials selectively used information to undermine studies that estimated relatively high casualty figures, made little effort to develop a systematic understanding of the tallies being offered, and did seemingly nothing to ensure figures were produced by the Iraqi government as the UK said it should ." The report also criticises the FOI process itself, with Action on Armed Violence reporting different ministries releasing or redacting the same information differently.

Freedom of Information and Local Government

Council will charge for FOI requests

FOI campaigners in North-West England are baffled by Cheshire West and Chester council's decision to charge for FOI requests.

The council argues that answering mostly vexatious or ridiculous questions cost taxpayers an estimated £250,000 in staff time and materials, an amount they wish to reduce significantly. According to the leader of the council, Cllr Mike Jones, questions asked don't reflect the original purposes of the Act: "Many of these inquiries are from companies simply using FOI to answer questions for market research purposes at the expense of the taxpayer".

However, FOI activists disagree with Mr Jones. Liam Byrne, member of anti-incinerator group CHAIN: "It should not be forgotten that it was only by asking awkward questions under the Freedom of Information Act that the Westminster MPs' expenses scandal was exposed. Who knows what skeletons are lying in local government cupboards, waiting to be discovered by similar means".

Council spending data goes private

The decision of some councils to outsource all their spending data to a private company has raised confusion amongst open data activists.

It has been considered against the spirit of open government for councils to give a private company an exclusive access to their detailed invoice information, of which the company then publishes an extract on SpotlightOnSpend website. Critics argue the data presented is not 'open', and moreover, Windsor & Maidenhead's data differs with data published on it's own spending website.

The UK Transparency Board reminded those involved of Board's principles for publishing open data. The case remains under the scrutiny of Transparency Board.

Discrimination against journalists?

Wycombe Council has apologised to the Bucks Free Press for witholding a document under FOI, only to release it later to a member of the public.

Editor Steve Cohen said: "We were stunned when we realised that the council treated our request differently [from that of a member of the public] but we are pleased that the council was big enough to accept its error and apologise."

The Council issued a statement apologising to the paper "for any inconvenience or confusion" caused by not releasing the document, which concerns the controversial development of a local stadium.

Freedom of Information and Parliament

Denham uses FOI to clear his name

Former communities secretary John Denham has made FOI requests to prove that another of his colleagues made the decision to buy expensive sofas for his department.

Denham's spokesman says he "sought the truth" through FOI after Eric Pickles, the Conservative Communities Secretary, "repeatedly claimed that [Denham] had approved excessive expenditure on furniture."

The reply to his request states that £135,000 was spent on red sofas for the Department of Communities and Local Government. It also confirms that the spending was approved by Yvette Cooper, the former chief secretary to the Treasury, in a letter to Hazel Blears, Denham's predecessor.

FOI fight over schools's legal costs

A Welsh MP has been involved in a prolonged FOI battle concerning a school's reluctancy to disclose the total sum of legal costs in a lost case about pupil's right to wear religious jewellery.

The case has cost the school at least £170,000 but despite repeated interventions from the Information Commissioner, the school has yet to release the final figures of their legal costs.

"I have asked questions of the school and its governing body as an elected representative and I ask those questions on behalf of the public. All of it is information held by the school, none of it is difficult to provide, and I believe the reasons for its non-disclosure have been to shield those responsible from the disapproval of the public for decisions they now regret ", said Cynon Valley MP Ann Clwyd.

FOI request on Forgemasters loan forms a basis for parliamentary debate

A Labour MP has used an FOI request to question a Minister about reasons to cancel a loan to Sheffield-based steel company Forgemasters.

Labour MPs argue that true reasons behind the cancellation can be found in a letter sent to minister of state for Business, Innovation and Skills Mark Prisk from a major private donor of Conservative Party. Angela Smith MP: "I have here correspondence released following a freedom of information request. It indicates that Andrew Cook, of William Cook Holdings, wrote to the Government to urge the cancellation of the loan". Sheffield MP Clive Betts continued: "There was not one other shred of evidence thrown at the review that could have led the Government to change the decision [on granting the loan] that had been taken previously".

The Minister defended Government actions by stating that the reluctant decision not to grant a loan was made on the grounds of unaffordability only and that Government has acted as transparently as it could possibly had while handling the matter.

Freedom of Information abroad


The Scottish government has backed down on its demands to restrict Scottish Information Commissioner Kevin Dunion's access to government files.

Row started in March, when SNP ministers wanted the Court of Session to rule whether Mr Dunion should have unfettered access to state papers during his investigations, which was seen by FOI campaigners as an unprecedented attack on the law underpinning FOI. Finally the Court dismissed the government's appeal after ministers dropped their demands.

Meanwhile, the Scottish government has started to seek views whether the existing Freedom of Information legislation should be widened to cover more bodies delivering public services. The consultation process will run for 14 weeks, until 2 November.

Amongst organisations to be consulted are contractors who build and maintain schools, hospitals and roads, private prison operators, leisure, sport and cultural trusts set up by local authorities and Glasgow Housing Association and the Association of Chief Police Officers in Scotland.

Minister for Parliamentary Business Bruce Crawford on the possible costs of action: "A key part of the consultation will be our examination of any possible costs associated with any extension of coverage. The Government is committed to increasing sustainable economic growth and will only introduce legislation that is measured and proportionate."


The Commonwealth Human Rights Initiative are hoping to extend the limits of transparency in India by making requests for to compile a list of topics discussed at the Cabinet meetings.

The agenda of the meetings of the Indian government's Cabinet are rarely publicised in advance. Information about what was discussed in the Cabinet is also not fully proactively published, however some information is selectively circulated through the Press Information Bureau. Although Cabinet papers are treated as secret documents prior to Cabinet meetings, Cabinet decisions along with reasons and the material basis of such decisions are within the remit of Indian's ATI Act. However, in actual practice, not much information about Cabinet meetings is available to people.


The Australian Minister for Finance and Deregulation, Lindsay Tanner MP, made an official Declaration of Open Government on July 16.

According to the new Gillard government (former Prime Minister Kevin Rudd was ousted as Labour leader on 24 June), is "committed to open government based on a culture of engagement, built on better access to and use of government held information, and sustained by innovative use of technology". In the declaration the government also states its three key principles in supporting openness and transparency: informing, engaging and participating.

Declaration is part of a wider Australian initiative of Government 2.0, which hopes to make government " willing to engage with and listen to its citizens; and to make available the vast national resource of non-sensitive public sector information ".

South Africa

The new Protection of Information Bill has caused controversy in South Africa, where campaigners argue that new legislation will result in "drawing an iron curtain of secrecy around much government activity" and is inconsistent with country's constitution (Section 32 gives access to information held by the state).

The bill is being criticised over its allowance to classify virtually any information whose disclosure might be embarassing, not only information with a connection to national security. Defenders of the Bill say, however, that there is a clear prohibition against using classification to cover up wrong-doings.

European Union

In June 29 the European Court of Justice made a decision that forces members of public to provide good reasons for disclosing the names of civil servants if they want to know you are working on their behalf. FOI activists have deemed the verdict as devastating for European transparency.

The issue started several years ago when an entrepreneur wanted to take part in one of the meetings of the European Commission, was refused and followed up by asking the minutes of the meeting including the list of participants.

Despite the fact that the Court of First Instance already in 2007 reached a conclusion that the disclosure of names " does not affect the private life of the persons in question, given that they participated in the meeting as representatives of the bodies to which they belonged ", the ECJ states that any mentioning of as much as a name is personal data and has to be protected according to data protecition rules.


Following a series of complaints about material insulting former president Kemal Ataturk, Turkish government has decided to block an access to several Google services. The row is part of a long-standing struggle which started in 2008 when Turkey decided to ban YouTube.

The controversial decision derives from a law which allows a court to block any website where there is a "sufficient suspicion" that a crime has occurred. According to Turkish legislation insulting Ataturk is a criminal offence.


Nancy Dubosse, manager of research in Institute for Democracy in Africa's Economic Governance Programme, argues that the current weakness of many African parliaments may leave them unable to legislate for the right to information and without the right of access to information, "parliamentarians remain second-class public servants, vulnerable to political party machinations and autocratic executives".

Despite recent attempts to enhance transparency, accountability and openness, the state of access to information in Africa is "poor and embarrassing". In addition, Kigali Declaration on the Development of an Equitable Information Society in Africa, a document which recognized that equitable access to information is a right for all and that there are vast inequities to equitable access to information, was signed by parliamentary representatives of only 27 out of 53 African countries. And despite the fact that the right of access to information is considered a human right in the African Charter on Human and People's Rights, only five African countries have passed legislation guaranteeing freedom of information.

Afghanistan and WikiLeaks

Julian Assange, founder of the organisation behind the leak of secret Afghanistan war logs is being repeatedly described in media as a man who "has structured his life around the quest for freedom of information".

WikiLeaks is a web-based organisation which aims to disclose classified information with a wide public interest and which, according to the organisation, should not be kept secret in the first place. WikiLeaks describes itself as "a multi-jurisdictional public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public".

Data Protection

"A call for evidence about data protection": McNally

Laws on data protection need to move with times, and individual citizens along with public sector organisations and business groups are all encouraged to have a say on the subject, minister of state for Justice Lord McNally states in Guardian.

On July 6 the coalition government announced a call for evidence about the Data Protection Act and the Data Protection Directive. According to McNally, the government is asking for the views of individuals, consumers, businesses, charities, the public sector and other groups about how the law is currently working on the ground.

Government is hoping to get an answer to questions whether "the definitions under the directive and the current act are still relevant; the rights of data subjects and the obligations of data controllers; whether the powers and penalties available to the information commissioner need to be strengthened, and how to deal with international transfers of personal data". Government will then use evidence they receive as a mean to develop UK's position in the negotiations on the new European data protection instrument.


"The increase in data protection complaints is a cause for concern": ICO

According to the ICO's annual report, there have been this year more data protection cases than any other so far. In total the watchdog recorded an amount of 33,324 data protection enquiries, which is alarmingly higher than was recorded in 2008/09.

Information Commissioner Christopher Graham would like to tackle the problem by giving courts the power to jail offenders in addition to their current ability to dole out fines up to £500,000. " I continue to believe that the courts should be able to impose a custodial sentence, where appropriate, to tackle the unlawful trade in personal data that is the scourge of the digital world. Data theft is no victimless crime ", the Commissioner stated.

Supreme Court: privacy trumps transparency in workplace monitoring case

The Supreme Court of Wisconsin ruled on 16 July 2010 that emails of a personal nature sent by government employees from workplace computers should be kept private. The case - Schill v. Wisconsin Rapids School District - revolved around a citizen's request for the release of personal emails sent by five teachers.

The Supreme Court largely justified the ruling on the basis of precedent from courts in other US States, where similar cases have been heard. "We know of no state that has reached the conclusion that the contents of such personal emails should be released to members of the public", read the 16 July judgment. "We too now conclude that while government business is to be kept open, the contents of employees emails are not part of government business."

The Court however acknowledged that in some circumstances - for example where the emails are required as evidence in a disciplinary investigation, or as a necessary source to look into an alleged misuse of government resources - personal emails of government employees can be released.

ICO decisions this month

July 2010

Information Tribunal decisions this month

July 2010