The Constitution Unit


Monthly Update: May 2012

Freedom of information in the UK

Protection of Freedoms Act 2012

The Protection of Freedoms Bill has now become an Act of Parliament, receiving Royal Assent on 1 May. Amongst its many provisions, the legislation contains a number of implications for existing information laws with Part 6 of the Act detailing the amendments to Freedom of Information and Data Protection.

The PoF Act amends several sections of the FOI Act, including the insertion of new sections 11A and 11B. The amendments to section 11 are concerned with the release of datasets, requiring public authorities to disclose them, either in response to a request or via proactive publication, in a standardised reusable format, a move welcomed by the Campaign for FOI, as it should "prevent authorities deliberately turning a spreadsheet into a pdf, before releasing it, to stop requesters running their own analyses of the spreadsheet itself".

Regarding the reuse of datasets that contain a relevant copyright work, the authority must make "the relevant copyright work available for re-use by the applicant in accordance with the terms of the specified licence", preventing public authorities from invoking copyright laws to prevent the republication of datasets by requesters.

Other changes include those to Section 19, outlining Publication Schemes, which now requires authorities to include any dataset that is the subject of a request within its publication scheme, and to keep the dataset appropriately updated.

Section 6, which defines publicly-owned companies, has been amended so that organisations jointly owned by two or more public authorities, not previously covered by FOI, are now subject to the legislation, and also the appointment and tenure of the Information Commissioner has been altered to a maximum of a single 7 year term.

The Cabinet Office Open Data Team are confident that the changes will help facilitate "the exploitation of datasets by businesses, non-profit organisations and others for social and commercial purposes" and support their "commitment to open up government to greater public scrutiny and help to deliver better value for money in public spending".

Release of NHS risk register vetoed

On 8 May Health Secretary Andrew Lansley MP confirmed the decision to veto the release of the NHS Transition Risk Register, following the ruling of the Information Tribunal that ordered its disclosure.

Announcing the fourth usage of the ministerial veto, Mr Lansley stated that it was not a decision that was "taken lightly", but emphasised his belief that there "needs to be safe space where officials are able to give ministers full and frank advice in developing policies and programmes" as "effective government requires it". The government has released a document which details some of the measures taken to mitigate possible risks, in place of the withheld risk register.

John Healey MP, who submitted the request for the risk register, commented that it was "totally over the top to place NHS changes on the same footing as preparations for the Iraq war" and it was "an admission of defeat on the legal arguments for public release". The government's decision to curtail any further examination of the FOI requests through the legal system was also condemned by the Campaign for FOI, stating that the government should submit "first to appeal and then to court" rather than immediately vetoing a decision it disagreed with.

The Information Commissioner Christopher Graham, in his report to Parliament on the use of the veto commented that "that none of the criteria for 'exceptional cases' in the Statement of Policy are met in the present case." Further, "the arguments are deployed in support of what is in fact the direct opposite of the exceptional - a generally less qualified, and therefore more predictable, 'safe space." He argued this amounted to a non-specific effort to protect the process of policy formation rather than the content of the register itself, contravening the legislative requirement for the use of the ministerial veto.

The Commissioner expressed concern about the future implications of the government's decision as the use of the veto, which has only previously been invoked to prevent the release of cabinet minutes. It has now been extended to other areas of the policy process, appearing "to have most to do with how the law might be changed to apply differently in future." Mr Graham called on the House of Commons Justice Committee to review this particular usage (as part of its current post-legislative scrutiny) and committee spokesperson has since confirmed that the veto of the risk registers would be addressed in their forthcoming report.

Post legislative Scrutiny of FOI continues

The sixth and seventh oral evidence sessions of post-legislative scrutiny of FOI took place on 15 and 16 May respectively. These were the final sessions of the inquiry, and witnesses included local government officials, Attorney General Dominic Grieve, Cabinet Minister Francis Maude, and Lord McNally.

Attorney General Dominic Grieve was pressed about the use of the veto to prevent disclosure of the NHS risk register (see above) amidst growing concern that recent comments and actions of government, officials, ex-ministers seem to be in favour of reducing the scope of information legislation. The Attorney General denied the existence of a general effort at senior level to roll back FOI, stating that he had "heard nothing to suggest… that there is some policy decision of 'let us establish clear boundaries so as to provide us with safe space'".

Francis Maude echoed previous comments made to the committee by Lord O'Donnell and Jack Straw, saying freedom of information requests had the effect of pushing discussions to "the tearoom, and not in cabinet where they should be", and that the "essence of being effective in government" was being able to receive "brutal" and "candid" advice from officials. However, Mr Maude did qualify these concerns by stating that whilst FOI disclosures can lead to embarrassment "we have to be a bit grown up about that".

Justice Minister Lord McNally urged the committee to use caution when considering potential legislative amendments, and whilst not opposed to "tweaking" the Act, he said it was important not to "send out the message that we are going to start lowering the portcullis of secrecy again". Lord McNally confirmed he did not want to see a "carte blanche" exemption for policy formation, as "that would be a really retrograde step in our governance". BBC journalist Martin Rosenbaum noted a marked difference in the tone between Francis Maude and Lord McNally, with the latter clearly more supportive of FOI.

McNally's support of FOI was echoed by Tom Watson MP in his evidence given to the Leveson inquiry. Mr Watson said that the press deserved a "much stronger" FOI act, advocating the removal of the ministerial veto and arguing that if people want more ethical journalism, then government must allow greater access to information.

Tribunal orders disclosure of Blair and Bush Iraq conversations

The Information Tribunal, following an appeal from the Foreign Office, have largely upheld the Information Commissioner's decision to disclose extracts of a phone conversation between Tony Blair and George Bush eight days prior to the invasion of Iraq in 2003. The Foreign Office had refused disclosure of the material under section 27, prejudice to international relations, and section 35, concerning ministerial communications.

In its decision, the Tribunal ruled that "the circumstances surrounding a decision by a UK government to go to war with another country is always likely to be of very significant public interest, even more so with the consequences of this war".

A Foreign Office spokesman commented that "The FCO is obviously disappointed by the decision of the tribunal. We will want to study the terms of the judgment more closely over the coming days". The Foreign Office has 30 days to either appeal the decision, or comply with the order to disclose the material.

ICO revise publication scheme

The ICO announced changes that will be made to the information public authorities will need to release proactively as part of their publication scheme. The ICO published its action plan for 2012/2013 following a series of consultations and workshops with public authorities, and suggestions from members of the public via the Tell Me More campaign.

The ICO will review and update all sector definition documents, which will outline the information authorities in different sectors should release, updating current requirements and existing ICO guidelines to comply with the amendments to publication schemes and reusable data contained within the Protection of Freedoms Act, as well as contributing to the wider open data initiative cross the public sector.

A revised Model Publication Scheme will then be introduced on 1 April 2013 which will apply to all sectors, with the definition document providing sector specific guidance to accompany the main scheme.

PASC calls for extension of FOI to private companies

The Public Accounts Select Committee has published a report calling for greater transparency over the financial affairs of companies who derive their income from government. Examining the introduction of the Work Programme, the Committee recommended that "where private companies provide public services funded by the taxpayer, those areas of their business which are publicly funded should be subject to the Freedom of Information Act provision".

If taken forward, this recommendation would subject the performance and contract details of private firms to scrutiny via FOI, a recommendation which has been criticised by CBI director for public services Matthew Fell. Mr Fell, whilst acknowledging the importance of transparency in public service delivery, argued that "we do not believe that extending the scope of Freedom of Information requests is an appropriate way of ensuring transparency" due to the commercial sensitivity of contracts delivered by organisations operating within a competitive environment.

Previously, CBI Scotland were instrumental in lobbying against similar proposals to extend the Scottish FOI Act to private firms, which resulted in the Scottish government retreating from the proposals citing pressure from contractors, a move which was condemned by the Campaign for FOI.

Cabinet office and potential charges for FOI

Tim Turner's request to the Cabinet Office for information regarding proposals to charge for FOI requests - mentioned in last month's update - has now been reviewed internally by the Cabinet Office.

The Cabinet Office have now decided that they do have "two pieces of discrete information" relating to the proposed charges for FOI requests, however disclosure of these was refused under section 35 of the FOI Act, a qualified exemption for information relating to the formation of government policy.

Mr Turner has appealed the decision - taking request to ICO, stating the reasons stated for refusal by the Cabinet Office were "totally generic".

Journalists and FOI

The growing acceptance of FOI as a journalistic tool was the focus of a recent article on journalism.co.uk, with discussion about how FOI has now become a permanent feature of the newsroom. One commenter noted that "I struggle to put a number on it but there's always FoIs going from various reporters". The value of FOI was said to reside in the openness and transparency that the Act fosters, rather the rare occasions in which a request might uncover scandal on the scale of MPs expenses.

Others drew attention to a perceived gap between the current open data agenda being pursued by government and the information that is actually requested via FOI, however some were optimistic that changes to the publication scheme introduced in the PoF Act discussed earlier "would probably save councils a lot of time because they wouldn't get the same questions over and over again".

Rest of the World


The Irish Information Commissioner Emily O'Reilly has published her annual report for 2011 this month. The report confirms an 8 per cent increase in the number of FOI requests received compared to the 2010 figure, and an increase of 15 per cent on the 2009 total. The Commissioner citied the economic downturn as a likely driver of the increase in volume.

In Ireland, requests for personal information and official information are dealt with under the same FOI regime. In total 16,517 requests were made to public bodies. 76 per cent related to access to personal information, 23 per cent to non-personal information and 1 per cent to mixed information. 58 per cent were disclosed in full, 20 per cent were partially disclosed, and 11 per cent were refused. Internal reviews against decisions of public bodies were sought in 3.5 per cent of the overall cases dealt with.

At the launch of the report, the Commissioner challenged the government to 'walk the walk' and restore Irish information legislation to "its pre-2003 state". The Information Commissioner advocated a reversal of the restrictions to the Act introduced in 2003, and called for the extension of the legislation to bring public bodies such as the Central Bank, National Asset Management Agency, the Garda and the National Treasury Management Agency under its scope.


New FOI laws

Brazilian President Dilma Rousseff announced its Freedom of Information Law came into effect on 16 May 2012. Article 19 praised the development but warned that if it is to improve transparency then a culture change is necessary, requiring "openness from civil servants and willingness to engage by civil society. It is a task for all".

Malta also confirmed that its FOI legislation will come into effect in September.

Spain's efforts to introduce an access to information law continue as the Spanish Cabinet approved a draft bill which will be put before the Parliament later this year, and if passed will come into effect some time in 2013.Deputy Prime Minister Soraya Sáenz de Santamaría announced that changes had been introduced to the draft legislation as a result of the process of public consultation that took place. Critics have demanded the publication of the new version of the law as well as the submissions to the public consultations which as yet have both been withheld by the Spanish administration.

A Commission of experts, who were convened by a government ministry to review the proposed legislation, were not informed of the amended draft. Helen Darbishire, Executive Director of Access Info Europe and a member of the expert panel, commented that "it is an insult to the high level experts to have them debate a draft law which is already an out of date version."

Data Protection

The Queen's speech - draft communication bill

The draft communications data bill, dubbed the 'snooper's charter' by some civil liberties groups, was included in the Queen's speech. The proposed legislation seeks to "maintain the ability" of the authorities "to access vital communications data under strict safeguards to protect the public". The plans would affect the rules governing how information can be collected and maintained by internet and mobile providers, and the availability of said information to authorities.

Campaign groups asked whether, given the lack of specificity and technical details outlined by government so far, "is it any wonder that the public are scared by a proposal for online surveillance not seen in any other Western democracy?" Big Brother Watch Director Nick Pickles raised doubts over whether the plans were technically possible given that "encrypted messages, virtual private networks and onion browsers" are "increasingly part of ordinary people's online habits", which would appear to have serious consequences for the security services' ability to monitor potential suspects who are technically astute.

A spokesperson for the ICO commented that they will wait for the details of the proposal, and any potential implications for the Information Commissioner, to emerge before confirming their position, adding that the case for the proposal "still has to be made".

Dispatches investigate private detectives and data breaches

The results of an undercover investigation into the unregulated private detective industry by Dispatches aired on Channel 4 on 14 May. The programme detailed the ease and extent by which private investigators are able to obtain personal data, with instances of firms paying for sensitive information, some of which is only stored on government databases.

Dispatches also submitted an FOI request to obtain statistics detailing how many times staff at the Department of Work and Pensions had been disciplined for data offences, with nearly 1000 civil servants unlawfully or inappropriately accessing social security records, between April 2011 and last January, equating to almost 5 staff per day committing data offences.

The Home affairs Committee are currently conducting an inquiry into private investigators and Committee Chairman Keith Vaz said the documentary raised "very troubling questions about the illegal trade in personal data which is carried out by unscrupulous private investigators". In light of the content of the Dispatches report, certain law firms have queried "whether the DPA is robust enough to tackle the problem" of the black market for personal data.

Latest decisions of the Information Tribunal

Latest decisions of the ICO