The Constitution Unit


Monthly Update: May 2011

Freedom of Information in the UK

Charity with government funds says it is not subject to FOI

A housing charity funded by the government has come under pressure from a Labour councillor after saying it is not subject to the Freedom of Information law.

When Labour Harrow Road ward councillor Guthrie McKie asked Westminster Community Homes (WCH) for the minutes of its meetings, he was told they could not be released because of a risk of disclosing 'confidential' information. McKie, in turn, took the complaint to the Information Commissioner.

The Homes and Communities Agency gave WCH £36million to fund its building programme but, despite it's close links to the council, the charity is autonomous and is not legally required to respond to FOI requests, according to Philippa Roe, cabinet member for housing.

The story comes only a few months after the Ministry of Justice, the department responsible for administering the FOI law, announced its plans to expand the scope of the law to include organisations contracted by the public sector.

Plans for one-stop shop for data delayed

An organisation meant to group together all government data services has been delayed from April to, possibly, September, as ministers and officials discuss its purpose.

"Our intent remains to put in place a coherent data policy framework by autumn 2011," stated Cabinet Office Minister Francis Maude, in an answer to a written question from Mark Pawsey MP.

Ministers are looking to "facilitate the development of a Public Data Corporation through a sponsoring department and the subsequent establishment of a PDC Shadow Board".

The new Public Data Corporation is meant to reorganise the largest trading funds - government owned companies that earn more than 50 percent of its revenue from the goods and services it provides - and provide a one-stop shop for data.

The Corporation will include its mapmaking agency Ordnance Survey (OS), the Met Office and the Land Registry. When plans for the PDC were announced last year, The Guardian quoted Maude as saying the government is considering privatising the Corporation after it is established.

Nobel laureate said FOI misused to intimidate scientists

Freedom of Information requests are being used by interest groups to delay research and harass scientists, said Sir Paul Nurse, president of the Royal Society.

Nurse's comments come after the launch of a study on how to make science research more accessible and open, which the institute plans to publish next year, according to The Guardian .

Nurse said that information should be made available as widely as possible, but FOI has "opened a Pandora's box" and said some researchers in the climate change community told him they had been asked for drafts of scientific papers and then questioned on the changes made between one draft and another. He questioned whether the requesters' intentions were honest information seeking, or just a way of disrupting scientific work. His comments follow the allegations of 'FOI-harassment' of Canadian professors by conservative politicians in regards to their comments on labour laws.

FOI and Parliament

Cameron's home refurbishing costs revealed

Labour MP Tom Watson has finally received an answer to his questions regarding the costs of refurbishment of Prime Minister David Cameron's Downing Street flat.

Nearly a year after the Cabinet Office refused to release information regarding the cost of refurbishing the kitchen in the apartment, the ICO ordered release. But the Cabinet Office missed the 7 April deadline.

They have now released the information: the costs have been £653,192 since last May, which government spokesmen say is within the range of expenditures made by former prime ministers.

The alterations to the home were funded, in part, from a £30,000 annual allowance for the maintenance of the Prime Minister's home, reported The Telegraph.

Tom Watson, a Labour MP, criticised Mr Cameron for spending public money on the flat. "The Prime Minister heralded the age of transparency and said we're in a for a period of austerity. Lo and behold the taxpayers subsidised a £30,000 kitchen. He's not living up to his pledges." Responding to the criticism, a spokesperson said that the refurbishment was part of a works programme started in 2006 by the previous government.

Government agrees with Committee on 'climate-gate' report

The Government has formally responded to the Science and Technology Committee's inquiry into 'climate-gate', drawing a line under the affair.

The Committee's report about East Anglia University scientists, published in January, concluded the Climate Research Unit was too secretive, but did not manipulate data. MPs said the scientists, who track long-term changes in temperature, were honest but disorganised and naïve.

The Government response was prepared by the Government Office for Science (GO-Science), with input from the Department for Business, Innovation and Skills, the Ministry of Justice, the Department of Energy and Climate Change and the Department for the Environment, Food and Rural Affairs.

The Government agreed with the Committee 'that research findings should be fully replicable and that publicly-funded research data should be readily available to others, to both allow them to replicate analysis and to develop their own ideas."

However, it also noted the "ethical, legal and commercial constraints which may preclude data-sharing which must be considered, to which the Government is giving attention to in its broader work on transparency. A set of common data access principles is being developed across the Research Councils: these principles start with a presumption in favour of openness and transparency, whilst ensuring appropriate protection and safeguards are in place to protect commercially sensitive and personal data."

FOI elsewhere


Jersey decides to take on the cost of an FOI law

Despite Jersey's Council of Ministers announcing Freedom of Information would be too expensive to support, when the bill was debated on 3 May, it was passed.

The bill, without amendments, was moved from the Privileges and Procedures Committee to the Executive, where plans will be made to implement the law by 2015, according to Anna Heuston, the Committee clerk.

In anticipation to the debate on the Freedom of Information law, the Council of Ministers had published a report stating the law would cost a minimum of £5.6 million a year, in addition to running costs of £1.3 million per year. The BBC reported that the Council of Ministers gave the bill poor chances of survival.

Jersey has had a code in place since 2000 which covered access to personal information kept by departments. Its new law is modelled after the UK FOI legislation.

Canada's liberals accused of politicising FOI

The New Democrats, Canada's official opposition party, has accused the Liberal Party of delaying Freedom of Information requests they identify as coming from the opposition.

The NDP obtained e-mails from the Liberal Party - the third strongest party in Congress - showing that staff are identifying FOI's as either 'contentious' or 'opposition'.

In a December 2009 e-mail exchange, quoted by the Toronto Sun, the FOI co-ordinator for the finance ministry, Suzette Collins tells a legislative assistant that a particular file is not "contentious" and asks him to "Pls make it one".

Finance Minister Dwight Duncan said the NDP-led government in 1990 issued a directive telling staff to inform ministers of potentially contentious FOI requests, so that they can be ready to respond if the issue is brought up in a debate.

Canada 's Access to Information Act has been judged as one of the worst among Westminster governments such as Australia, the UK, Ireland and New Zealand. The main problem, critics say, is not with the law itself but with a lack of political will to implement it properly (See the Constitution Unit's Canada Country Profile). In order to make an FOI in Canada, a requester must pay a fee, provide his or her full address in writing, and requests cannot be sent via email. The legislation has no overriding public interest test and excludes Cabinet documents. Requests can only be made by Canadian residents or persons or corporations present in Canada.

AP seeks Osama bin Laden's capture photos

The Associated Press news agency has filed a Freedom of Information request asking the Obama administration to release photographs of Osama bin Laden's body after a US raid left him dead in April.

After the request was denied, the agency appealed directly to the Department of Defense, according to USA Today.

The request asks for military personnel video and photos taken during the raid and on the ship that conducted Bin Laden's burial in the North Arabian Sea, as well as contingency plans for the al-Qaeda leader's capture and DNA tests confirming his identity.

Despite the administration's statements to the contrary, the photos will eventually have to be released, says Dan Metcalfe, a Constitution Unit Associate, who headed the Justice Department's office of information and privacy for more than 25 years.

In a 2006 case regarding the release photos showing abusive treatment of detainees by US military personnel in Abu Ghraib, the 2nd US Circuit Court of Appeals ruled the government needed to demonstrate that releasing the photos would harm specific individuals.

But there are other possible actions the government could take, like classifying the photos, making them exempt under FOIA. Still, Metcalfe says, it would be difficult to classify photos that don't show sensitive material about military operations. Better yet, they may have sent the photographs to White House entities which are exempt from the Act, like the National Security Council. You can read Dan's analysis here.

Australia : more funding necessary for Archives for FOI to work

Australian National Archives are struggling to comply with new Freedom of Information laws requiring the government to release all public records within a shortened period of time, according to Australia's public sector union.

The new legislation requiring records to be released after 20 years instead of 30 was introduced in November, and AU$16 million (around 10 million British pounds) was allocated to the new storage site at the National Archives of Australia.

But the funding will not be released until the 2016-2017 financial year and Community and Public Sector Union says this is far too late, reported the Australian news organisation ABC .

Though CPSU national secretary Nadine Flood says the NAA has already run out of space in some storage facilities, National Archives acting director-general Stephen Ellis says the institution is still complying with the statutory response period of 30 days.

Australia was the first Westminster-style government to adopt a Freedom of Information law and new amendments were passed in May of last year intended both widen its scope and make requesting the information less financially burdensome (see the Constitution Unit's country profile for more information).

The legislation includes a new 'public interest test' which will demand greater accessibility to previously exempt documents. The public interest test said to be "actively weighted towards disclosure." The AU$30 fee for requests was eliminated, as well as many other procedural fees. It's still costly to make a request, however: AU$15 an hour for time spent researching and retrieving documents in response to an FOI request - a process which takes, on average, more than 18 hours.

Nigeria gets an FOI law

The West African country's congress has passed a freedom of information law, which is waiting to be signed by president Goodluck Jonathan, who was sworn in May 31.

The law gives government bodies one week to respond to information requests and makes it a criminal offence to destroy records. The law is said to be stronger than a 2007 version that then president Olusegun Obasanjo, the first elected president after years of military rule, refused to sign, the Associated Press reported.

Nigeria 's 16 years of military rule ended in 1999 with a new constitution and a democratic government. According to the CIA World Factbook, many resources in the petroleum-rich country have been squandered through corruption and mismanagement.

Hungary 's new constitution weakens FOI

President Pál Schmitt signed a new constitution last month that media freedom groups say limits the public's right to access information, according to Freedominfo.org

The new Constitution, which passed in Parliament by a vote of 262 to 44, has replaced the independent Data Protection and Freedom of Information Commissioner with an administrative authority.

The South East European Network for Professionalism in the Media, a Budapest-based center for independent journalism, stated last month that though it does not have full knowledge of the new body that will oversee the public's right to information , "it is unlikely that the body will have the same powers or independence as the Commissioner enjoyed to date."

The new constitution is meant to break with the legal framework designed during communist rule, but Human Rights Watch has asked President Schmitt to send the document back to Congress for reconsideration, saying it puts the rights of people with disabilities, women, and LGBT people at risk.

Hungary was one of the first European countries to adopt freedom of information legislation and, in 2003 individuals gained access to their own files created by the communist-era secret police.