The Constitution Unit


Monthly Update: March 2011

Freedom of information in the UK

MoJ publishes impact assessment for changes to FOIA

This month saw the Ministry of Justice publication of its impact statement on the extension of the FOIA to bodies owned by two or more public authorities. Currently, public bodies that are entirely owned by a number of public organisations fall outside the act, even if they are entirely funded with public money. The change will put an end to this 'loop hole'.

Although the assessment was not able to estimate the total cost of the reform, nor how many organisations would be affected, it was able to identify examples of those that will be included as a result, and how much it is likely to cost them. Of those likely to be most affected was Manchester Airport Group, for whom the cost of the first year's running was estimated to be £245,000. Of those who are likely to be more minimally affected, are care homes and services, such as waste disposal.

Unfortunately, there is uncertainty within the current form of the Bill, as rather than limiting the scope of FOI to organisations owned by two or more authorities listed within schedule 1 of the FOIA, the Bill includes companies owned by "the wider public sector". This is a term not used previously in the FOIA, so it is not clear whether it would extend the scope beyond companies owned by two or more public bodies already covered by the Act. Beachcroft LLP suggest that this problem is unlikely to arise in the final version of the Bill, however, as it is likely that this provision will be tightened up as the Bill progresses through Parliament.

Scottish ICO releases annual report

The Scottish ICO published its annual report on its performance this month. Figures showed that the ICO had issued 50 per cent more decisions in 2010 than the previous year, as well as showing a 10 per cent increase in decisions in favour, or partially in favour, of requesters.

Taking the opportunity to speak about the future of FOI, Kevin Dunion, the Scottish Information Commissioner, raised the issue of privatisation decreasing the scope of the FOI(S)A. Writing in The Scotsman, Mr Dunion remarked that:

'[o]ur experience in Scotland has shown that multi-million-pound contracts with private consortia to build and maintain schools, hospitals and roads on behalf of public authorities mean that parents, patients and road users cannot get direct access to information about the operational performance of these companies - because they are not covered by freedom of information laws.'

He also expressed concern that although local authority trusts providing leisure, recreational or cultural services may be carrying out the same functions and even operating from the same buildings as a public body previously covering those functions, they would now fall outside the scope of FOI.

HE researchers hold workshops on the effects of the FOIA on the HE sector

The first of a series of regional workshops on the implications of FOI for the Higher Education sector was held on 22 March. Held by the Information Network with the support of the Joint Information Systems Committee and a number of collaborating institutions, the groups considered how universities are subject to the Act as well as ways in which it can provide a useful tool for research. These events emerged out of the Roundtable meeting between the ICO and the HE sector in September of last year, with the aim of developing the knowledge of HE researchers and providing them support with their approach to FOI. The Constitution Unit at UCL will be taking part in the London workshop on 1 April.

FOI and Parliament

Caroline Lucas calls for extension of FOI

Green Party Leader, Caroline Lucas, called for an extension of FOI to banks, telecoms operators and other major corporations providing key services to the public. Speaking at the Green Party conference, she said, 'We depend on these corporations in just the same way as we depend on schools or hospitals to deliver our services. When they fail, we all suffer - so they must be opened up to public scrutiny.'

The proposal did not take the form of adding private organisations to the FOIA, but of giving the ICO the power to determine classes of information that organisations would be required to release. If accepted, this policy would mean that companies would have to pro-actively publish more information, but would not have to respond to FOI requests.

Private members bill to reform FOIA in Parliament

Tom Brake MP's private members bill to remove the ministerial veto on decisions of the ICO and Information Tribunal was on the order paper for 18 March, but a shortage of time led to the second reading being moved to June. Lord McNally, the minister responsible for FOI, had indicated earlier this year that he was still in favour of removing the veto, but that a proposal that sought to do so might require compromise in order to be passed. As a private members bill scheduled last for the 17 June, it remains unlikely that the bill will become law in the immediate future.

IPSA unveil changes to rules on MPs' expenses

IPSA announced several changes to the MPs expenses system on 25 March. The alterations include a change to the definition of 'caring responsibilities' to provide greater support to MPs with dependent children, a change to the definition of the London Area to 20 miles from Westminster (to include 97 MPs), as well as a simplification of the structure of the budget for office costs, to make a clear distinction between business costs and personal expenses. IPSA chairman, Sir Ian Kennedy, said of the changes: 'It is right and fair to keep the rules on MPs' expenses under review, to make sure they are appropriate and to see they evolve as is necessary to meet the needs of the public and MPs'.

FOI Elsewhere

European courts rule on transparency case

The General Court of the EU ruled in favour of Access Info Europe this month, in their challenge to the decision of the Council of the EU to keep the origins of proposed reforms to the European access to information scheme anonymous. AIE had been seeking information about proposed amendments to European access to information rules, but while the Council were willing to release documents outlining the proposals, they had refused to identify the countries that had submitted and supported those proposals.

In argument before the court, the Council had argued that making the identity of proposers public would lead delegations to become entrenched, as they would 'lose some of their ability … to justify before their public a compromise solution'. The court rejected this argument, stating that 'it is in the nature of democratic debate that a proposal for amendment of a draft regulation … can be subject to both positive and negative comments on the part of the public and media.'

Commenting on the ruling, the Executive Director of AIE said, '[t]his ruling means that the European public will be better informed about and have a say in the decisions that affect our everyday lives.' The hope for supporters is that in knowing which countries are campaigning for what legislation, people can become more effectively involved in the process of European legislation.

The court case arose as part of an AIE study into reform of European access to information regulations.

US Supreme Court rejects FOIA privacy protections for companies

On 1 March, the US Supreme Court ruled against AT&T's claim that their information was exempt from FOI because of the company's "personal privacy". The exemption in question covered law enforcement records the disclosure of which 'could reasonably be expected to constitute an unwarranted invasion of personal privacy'. AT&T had argued that because corporations can be "persons", the term "personal" also covered them. The court rejected this argument, with Chief Justice Roberts expressing the unanimous view of the court, that this use of personal referred exclusively to human beings.

Commentators have been largely welcoming of the ruling. Linda Campbell, a US journalist, described the decision as "big loss for corporate overreaching and a big win for open government records", while AT&T made no official comment on the decision.

The decision came shortly before Sunshine Week, between 13-19 March, a campaign focusing on freedom of information. Media, civic groups, libraries, schools and other interested parties took the opportunity to discuss access to information, transparency, and the impact that they have had in the US.

El Salvador

The Legislative Assembly of El Salvador has approved the Law on Access to Public Information. Although originally passed in December of last year, the Act was caught up in Committee stages following President Funes' concerns about the time provided for implementation. The Act will now come into force in March 2012.

Data Protection

ICO gives evidence to the Public Bills Committee on the Protection of Freedoms Bill

UK Information Commissioner Christopher Graham has been speaking about the Protection of Freedoms Bill this month. In evidence submitted to the Public Bills Committee, Mr Graham largely welcomed the provisions of the Bill, singling out the new rules limiting the retention of biometric information held on individuals of no ongoing concern to the police, but was more sceptical about some of the changes to the CCTV regime, suggesting that aspects might need to be rethought.

The commissioner also gave testimony at an oral hearing on 24 March where he was questioned in relation to the Bill, as well as FOI and data protection more generally. Questions covered a wide range of topics, from the finer points of CCTV regulation to more policy oriented matters such as the length of the IC's term of office and whether the ministerial veto on decisions of the ICO and information tribunal should be abolished.

Controversy over a "right to be forgotten"

Viviane Reding, the EU Commissioner responsible for Justice, Fundamental Rights and Citizenship, spoke at this months Privacy platform in favour of creating a 'right to be forgotten' as part of reforms to European privacy legislation. Her proposed changes include that individuals should have a right to demand that their personal information be deleted, and that data processors "must prove that they need to keep the data rather than individuals having to prove that collecting their data is not necessary".

Speaking at Westminster Media Forum event, Jim Killock, the Executive Director of the Open Rights Group supported Viviane Reding, arguing that "[i]t's about a power balance- we have lost control of our data". Dr Chris Pounder, of Amberhawk Training, raised problems involved in removing information from an international environment. Highlighting different attitudes to data, Dr Pounder raised the example of the USA, where "Americans do not see privacy as applying to anything in the public domain". Richard Allen, Director of Policy EU at Facebook, raised the problems involved in removing data that is published on social networking sites. While companies such as Facebook could delete the information they hold, he said, once information has been published on Facebook, it has been published to the whole internet. The suggestion is that it can be difficult to trace where information ends up after it has been published online.


ICO cases

March 2011

First Tier (Information Rights) Tribunal

Most recent decisions