The Constitution Unit


Monthly Update: July 2011

Freedom of information in the UK

The phone-hacking scandal

The News of the World controversy may alter the way information on government ministers' meetings with the media is recorded and issued to the public.

Prime Minister David Cameron said said he wants to amend the ministerial code to require ministers to record and publish "all meetings with newspaper and other media proprietors, senior editors and executives - regardless of the nature of the meeting."

The BBC's Freedom of Information specialist Martin Rosenbaum helps put the effects of the measure into perspective, comparing it to the regulations already in place.

Today, ministers must reveal meetings with external organisations on a quarterly basis (though, as Rosenbaum remarks, the list stops short of year 2011), according to the ministerial code. The public can also look at details of hospitality received by ministers and special advisers.

Cameron's pledge would amplify the definition of meetings and also cover permanent secretaries.

The public can request all this information with the FOI Act, but if meetings are informal or private, they may not be subject to the Act. It is unclear how Cameron's words will ultimately be interpreted.

Read the Constitution Unit's blog for more information.


Government will publish new data on the National Health Service and more

The Cabinet Office announced this month it will be publishing data on GP practices as well as on courts, schools and transport. Prime Minister David Cameron said the disclosures would give the public better information to make choices, but he also stresses it will generate competition among colleagues.


"All the evidence shows that when you give professionals information about other people's performance, there's a race to the top as they learn from the best," he said. Cameron also said he believes the information will enhance the economy by keeping tabs on spending and curb waste, duplication of services and salaries.

The information published will include:

  • prescribing data, clinical results and the treatment of lung cancer and other medical conditions by teams of doctors in different hospitals.
  • Hospital complaints and staff satisfaction levels
  • Anonymised data on the effectiveness of schools from the National Pupil Database
  • Courts' anonymised criminal sentencing data (it won't include the names of those sentenced, but it will include age, gender, ethnicity, sentence and the time taken from offense to completion of the case in court).
  • On transportation, data on road conditions, car parks, rail timetables, performance, roadwork will be published. 
  • According to the Guardian, ministers will also be publishing all spending on government credit cards as part of the transparency plan.

Just hours after Cameron stated the government's plans, Bernard Jenkin, chairman of the Commons Public Administration Select Committee, said publishing data on government websites is not enough. The information must also be accessible and the government must engage more proactively with the public, he said.

At the Constitution Unit's FOI Live conference last month Tim Kelsey, the Cabinet Office official overseeing the government's transparency strategy highlighed the lack of information the public has on GP performance and said transparency could improve performance.

More open datasets in Canada

Echoing developments in the UK, the province of British Columbia, Canada, also launched an open data site with around 2,500 data sets on subjects such as public-sector salaries and school test scores.

The aim was to proactively release raw data to the public, giving people the liberty to reinterpret and reorganise it however they like.

The B.C. government also announced it will be posting data from Freedom of Information requests at openinfo.gov.bc.ca. According to the Vancouver Sun, the government will give the original requester 72 hours or more to review records before posting them online, so as to let journalists break stories using their own FOI requests.



Updates to the veto provision announced in Parliament

Justice Secretary Kenneth Clarke published changes to the veto provision in the Freedom of Information Act last month, placing guidelines on when the veto can and cannot be used.

'Accountable person'

The focus of the update is on section 35(1) which states that information held by a government department is exempt if it relates to formulation of government policy and ministerial communications, and other related circumstances.

The update looks to set the criteria under which the veto can be used.

The Freedom of Information Act states that an 'accountable person' can override the Information Commissioner or the Tribunal when a decision is made whether to release information (section 53).

The 'accountable person' is defined in the Act as "a Minister of the Crown who is a member of the Cabinet, or the Attorney General."

This means that the 'accountable person' can decide that it is not in the public interest to release information such as the communication between ministers - by providing a certificate with their reasons for exercising the veto, and placing it before the two houses of Parliament . This way he or she overrides the public information authority.

According to the act, the 'accountable person' has 20 working days following the effective date to exercise the veto.

In the updated policy, the definition of the 'accountable person' is defined as " the Cabinet Minister with responsibility for the policy area to which the information relates." If the subject involves documents from a previous administration, the Attorney General will be responsible.

Public interest

To exercise the veto, the 'accountable person' will have to undergo two steps in their analysis. First, they must evaluate whether withholding information outweighs the public interest in disclosure. If it does, the new policy provides another set of criteria to consider.

  • The release would damage the Cabinet Government
  • It will harm "collective responsibility" (the convention that ministers are entitled to discuss policy confidentially before a public statement is issued together)
  • It must revisit the public interest arguments

Collective responsibility maintained

The government have made clear however that the convention of using the veto only after a collective decision by the Cabinet will continue:

"This policy statement relates only to the exercise of the veto in respect of information that relates to the operation of the principle of collective responsibility. It does not apply to all information that passes to and from Ministers, for example. This policy statement - though limited in scope - does not preclude consideration of the veto in respect of other types of information. However, in accordance with our overarching commitment to use the power only in exceptional cases, such consideration would be preceded by a collective Cabinet view on whether it might be appropriate to exercise the veto in a given case. In making his or her decision, the Cabinet Minister or Attorney General (acting as the accountable person) would be entitled to place great weight on the collective assessment of Cabinet in deciding whether or not to actually exercise the veto."

The FOI veto power was first used in 2009, when the government blocked publication of cabinet minutes containing debate on the 2003 invasion of Iraq.

Jack Straw, the Secretary of State for Justice at the time, said publication would seriously damage the Cabinet Government, would "drive collective discussions into informal channels," and damage the recording of history.

Prince Charles accused of meddling after FOI requests reveal meetings

Prince Charles has been accused of meddling in Government policy after the Mail on Sunday revealed he has had at least nine private meetings with cabinet ministers in less than ten months.

Prince Charles summoned ministers for private talks at Clarence House, sometimes accompanied by their mandarins. Documents obtained by The Mail on Sunday via FOI show he focused on meeting ministers responsible for his 'hobby horse' issues, such as global warming, conservation, architecture and agriculture. However, he also met with Chancellor George Osborne, Education Secretary Michael Gove and Work and Pensions Secretary Iain Duncan Smith.

Most departments refused to give further details of the meetings, using the FOI exemption designed to protect members of the royal family.

Martin Rosenbaum notes, however, that some requests regarding the Prince may actually fall under the Environmental Information Regulations, as many of his personal interests lie in environmental issues.

'The EIR stem from a European Union directive and do not have any specific provisions protecting members of the Royal Household," he said.

Read the Constitution Unit's blog for more information

Academic wins right to read UEA climate change data


A physics professor at Oxford University will be able to read data on climate change held by the University of East Anglia that was previously withheld, after an appeal to the Information Commissioner, said the Guardian.

Jonathan Jones, who has described himself as a 'climate change agnostic,' will have access to an archive of world temperature records, which was collected jointly with the Met Office.

The ruling has clarified the limits of commonly used exemptions by universities to protect their data.

Information Commissioner Christopher Graham gave the UEA one month to deliver more than 4 million individual thermometer readings taken from 4,000 weather stations over the past 160 years, among other sets of data.


Jeff Tollerson from Nature has broken down the key arguments used by UAE that were unsuccessful in keeping the data from Jones:

  • The CRU argued that un-processed datasets were publicly available; the ICO ruled that UAE could not rely on the public having information technology skills to process the data.
  • The CRU said release could damage relations with research partners around the world; The ICO said specific threats needed to be identified and then these subject to a public interest test.  
  • The CRU argued it has intellectual property rights and rights to commercial exploitation of its own data. The ICO said this argument is not valid because the un-processed data is already publicly available.



Tobacco giant accused of FOI harassment


Another University has lost the right to withhold its information - the Scottish Information Commissioner has ruled that Stirling University's Centre for Tobacco Control Research must respond to Philip Morris International's requests for information.

The Herald Scotland reported that Philip Morris International has tried for almost a year to obtain "full details of a project about smoking and young people." The university has refused, saying the request was "vexatious" and "designed to cause disruption."

Stirling also provided evidence of other cases in which the tobacco industry used FOI to harass health professionals, according to the Herald.

The tobacco giant appealed to Information Commissioner Kevin Dunion, who responded in favour of PMI. The Commissioner accepted that PMI's request would impose a significant burden on the University, but argued that Stirling had not given sufficient proof that the request caused "disruption and annoyance."



Information Commissioner warns Welsh government

Commissioner Christopher Graham told the Welsh Government it should review the way it handles Freedom of Information requests.

He also ruled that a report by management consultants on the NHS, which criticised some aspects of the way the institution was functioning, should be released.

This came in response to a complaint made by Conservative assembly leader Andrew RT Davies, who asked to see the correspondence and details of meetings between former Health Minister Edwina Hart, her officials and the management consultants McKinsey & Company. He did not receive a "substantive response" until January of this year, seven months after the request was sent

Hart said the consultants had produced a "discussion document", not a report and denied concealing the information.

The Welsh Government was given 35 days from 18 July to disclose the information, and 28 days from that date to appeal the ICO's decision.

A spokesman for the Welsh Government said it "will consider the content of the judgment and respond to the Information Commissioner's office in due course" according to the BBC.



Northern Ireland: Special advisers' salaries not public

News Letter, one of Northern Ireland's main daily newspapers has used FOI to report that Stormont has about double the number of special advisers than Scotland and Wales.

This has lead to calls for Stormont to publish SpAd's exact salary, following Westminster's disclosure last month.


The Northern Ireland parliament publishes wide pay bands, which show the advisers are paid between £656,500 and £1.4 million each year.

Traditional Unionist Voice leader Jim Allister has been asking about special advisers since he was elected two months ago and has found that a special adviser had been paid almost £14,000 for IT equipment, as well as a generous salary.

Westminster revealed that Craig Oliver, Prime Minister David Cameron's head of communications and the new director of political strategy are the highest paid SpAds, earning £140,000. The total pay for SpAds between 13 May 2010 to 31 March 2011 was £4.5 million, about £2 million less than the 6 April 2009 - 31 March 2010 period.

Is a tweet a valid FOI?

Yes, according to the ICO. Andy Mabbett hosts an interesting discussion on this topic on his blog.




MPs answer 60 per cent of messages on public accountability website

The likelihood of getting a response on WriteToThem, a popular website that allows the public to write their representatives depends on the type of representative contacted, according to MySociety.org reports .

MPs answer about 60 per cent of messages they receive, while users writing to a councillor have about 50 per cent chance of getting a response. Ministers of European Parliament write back the least, with an under 50 percent response rate.

MySociety.org, which operates ten websites on facilitating communication and accountability between government and the public, commissioned Tobias Escher of the Oxford Internet Institute to conduct a study to assess the effectiveness of two of their websites: TheyWorkForYou and WriteToThem.

The results showed the websites met the goals set by the organisation seven years after they were launched.

Users considered that both websites are user-friendly and effective watchdogs. More than four out of five users would recommend WriteToThem to a friend; and most users said TheyWorkForYou - a website that shows information on the members and the proceedings of all parliaments and assemblies in the UK- is better than the official parliamentary site.

The survey also suggested the websites may play a role in increasing democratic participation.

  • Sixty per cent of TheyWorkForYou visitors had never looked up their representatives before they encountered the website
  • Two in five users of WriteToThem had never contacted a representative.

The report also provides a sense of the demographics of users. For both websites, most WriteToThem users have a higher degree and a higher income and are mostly male, white, and over 35.


Figures released on how much was saved with the "bonfire of the quangos"


Using the Freedom of Information Act, Labour has accused the government of presenting service cuts as savings incurred by dismantling hundreds of public bodies and merging others.

The government has admitted that less than 10 per cent of its savings came directly from the "bonfire of the quangos."

The government says it will save £33 billion from the quango reforms, but just under £2.6 billion is from the administrative changes, according to information revealed by the request.


"It beggars belief that [Francis] Maude ( Minister for the Cabinet Office) has sought to present frontline cuts to housing and universities as savings from public bodies' reform. This deeply cynical use of figures shows the degree to which the Tory-led government cannot be trusted with our public services," the shadow Cabinet Office minister, Tessa Jowell told the Guardian.

The "quango bonfire" involved the elimination of 192 bodies, the merger of 118 and the reform of 171, including the Health and Safety Executive, Charity Commission and the Environment Agency.




Local government

Kirklees council leader accused of inappropriate use of FOI law


Counsellor Mehboob Khan of Kirklees, a metropolitan borough of West Yorkshire, is being investigated for misconduct in relation to the Freedom of Information Act.

A Huddersfield Daily Examiner investigation alleged Khan was intervening in the FOI process to prevent information from being released.

Kirklees Council had refused to investigate and Khan denied he had done anything wrong, saying he was trying to out information into context. The newspaper reported 15 July that the Council had decided to take the investigation on following an official public complaint, but did not give details on the time and place.

The Examiner printed emails sent between Khan and FOI officers at Kirklees Council, allegedly showing Khan instructing officers not to release information and asking about the requester. You can see them here .


Liverpool also amended FOI responses

An internal audit investigation in Liverpool Council leaked to the Liverpool Daily Post showed items were deleted in response to a Freedom of Information request sent by the newspaper.

The request asked for "details of the register of hospitality received by officials in September 2009." Councillor Joe Anderson, who was leader of the Labour opposition at the time, requested the same information, according to the newspaper.

The investigation, dated January 2011, concluded that items were deleted in the response and there were discrepancies between information in the original register and that which was released.

DfE angers councils with inaccurate information

Several London councils are furious with the Department for Education for answering FOI requests inaccurately.

The New Statesman asked for the number of SureStart centes that had been closed since May 2010. DfE replied that 20 had, half of which were in London boroughs.

But Redbrige insisted that its seven had not shut - five of them had merged. DfE said Greenwich closed five centres, while Greenwich claims it has actually closed none at all. Wandsworth and Hackey also dispute DfE's figures.


Scotland: Council leader wants FOI change to prevent 'trivial' requests


A Scottish council leader wants to end responses to trivial Freedom of Information requests.

Councillor Bob Myles, who has lead Angus Council since 2007, made the comment when describing a request which revealed the council spent thousands on credit cards during the same 15-month period in which it announced 500 redundancies.

He said the FOI requests often served to create "sensationalist stories."

"I don't know why we have to spend thousands of pounds responding to freedom of information requests whenever a journalist gets a bee in their bonnet," he said.


"Angus Council recently spent £2000 responding to one request. How is that kind of expenditure justifiable?

"I'm all for being open and honest with the public but when people start querying insignificant amounts it's a waste of everybody's time. Maybe they should ask how much we spend responding to FOI requests every year."




Isle of Man slow on FOI bill

After four years in the works, Manx chief minister warned that a Freedom of Information law would be expensive to maintain.

In the last sitting of the House of Keys  on 28 June, chief minister Tony Brown said the Code of Practice on Access to Government Information - the self-governing Crown Dependency's current regulation "has served this island very well," and added that ministers would have to consider whether they were willing to take on the cost.

Brown said the government would have to spend £1 million a year to administer the law, and a further £2 million to set it up.

General elections in Isle of Man will take place September 29, so the bill will be passed on to the next chief minister and council. The last sitting of Tynwald, the island's parliament, was July 12.

Read more on the Constitution Unit's blog.

45th anniversary of FOI Act in US

The anniversary of the US Freedom of Information Act may be greeted with the same fireworks as Independence Day, but some are not too happy with the way it's working.

A recent analysis by the National Security Archive at George Washington University, which collects and publishes declassified government documents, shows that it is common for responses that take a year or more.

The New York Times reported, just a few days before the anniversary of the Act, that only 49 of 90 federal agencies "reported making concrete changes to their FOIA procedures" in response to President Barack Obama's inaugural call for more transparency across government.

David Sobel, a transparency advocate, told the newspaper the backlog did not necessarily have to do with lack of staff, but rather an agency's desire to control its public image.

The Nieman Watchdog Journalism Project, which suggests requests the media should make to government, said the response to terrorism has also led government agencies toward greater secrecy. It also questioned whether Wikileaks will threaten the use of FOIA, making leaks much more prevalent than information requests.

In May, Democratic Senator Patrick Leahy and Republican Senator John Cornyn introduced the Faster FOIA Act, which would establish an advisory panel to examine the backlog of more than 69,000 FOIA requests. It passed unanimously in the Senate but is still to be taken up by the House, reports the Washington Post.


Data Protection

Police officers breach DPA

Freedom of Information requests have revealed that 904 police employees were found to have breached the Data Protection Act in the last three years.

The privacy lobby group Big Brother Watch obtained figures from 36 police forces in England and Wales. In Merseyside, a metropolitan county in North West England, 207 officers and staff were subject to disciplinary action with one person receiving a criminal conviction.

Seven forces either did not reply or did not provide information.


The Guardian highlighted a few interesting cases from the report: A police sergeant in Nottinghamshire was convicted of accessing police systems for purposes that did not involve his job and was sentenced to jail for a year. A police community support officer in Norfolk was found guilty of relaying details of a call to the police to a family member and was dismissed from his or her post.

EU cookie policy affects visits to ICO website


The opt-in cookie policy implemented in the UK in may have driven visits to the Information Commissioner's Office website down 90 percent, as revealed by a Freedom of Information request.

The revised Privacy and Electronic Communication Regulations came into force in the UK on 26 May after an EU directive was passed on to member states. It outlines that websites need consent from visitors if cookies are stored in their computers.

The ICO's website was one of the first to adopt the policy, but businesses with have until May 2012 to implement it on their websites.

The data obtained by analytics expert Vicky Brock shows that recorded visits dropped from an average of 8237 from the period of  5-24 May 24, to 883 from 26 May-14 June.

Companies use cookies to show advertisers where their audience is located.

Australia revisiting controversial data retention plans


Plans to force internet providers to maintain records of all subscribers for potential use by law enforcement agencies is being considered for the second time, reports The Australian.

The government's plans were prompted by the 2006 European Union Data Retention Directive, in which member states must store citizens' telecommunications data for six to 24 months. An April departmental briefing note to the Attorney General the newspaper obtained through a Freedom of Information request, states that the proposed plan will be modelled on the EU directive.

According to the brief, information on the identity of the sender and receiver will be retained.

Meanwhile, the EU data protection authority condemned the 2006 directive in May, saying it doesn't meet data protection and privacy requirements.

The office of the European Data Protection Supervisor issued an 16-page opinion calling on the European Commission to consider the impacts of the directive and to either look at the possibility of repealing it, or draft a more "targeted measure."

Links to the ICO decisions of July 2011

First-tier Tribunal (Information Rights) decisions of July 2011