The Constitution Unit


Monthly Update: November 2011

Freedom of information in the UK

Duchy of Cornwall loses appeal on EIR status

The Information Tribunal (case no. EA/2010/0182) has ruled that the Duchy of Cornwall must deal with a request for information under Environmental Information Regulations as it has ruled it is a public authority under the scope of the EIRs. 

In 2008 Michael Bruton requested information under the EIRs from the Duchy regarding the introduction of non-native oysters to the Port Navas Oyster Farm, a designated conservation area. The Duchy refused to give the information, arguing it did not regard itself as a public authority under the EIRs. The Information Commission agreed with this argument and ruled it had no jurisdiction to consider complaints against the Duchy.

The Tribunal found however a "preponderance of factors point to the Duchy carrying out functions of public administration", including its functions are similar to that of a government department, it is accountable to Parliament, and exists on a statutory basis (see pages 28-30 of the ruling).

It has subsequently been reported that the Duke of Cornwall, Prince Charles, is to challenge the ruling. However on 23 November Lord McNally told peers the government would make no comment on the ruling until a decision had been formally made regarding an appeal.

Prime Minister must disclose costs of refurbishing Number 11

The Information Commissioner has stated that David Cameron must publicise further details of works he had carried out to his Downing Street flat. This is the result of an FOI request made by Tom Watson MP for information regarding the refurbishment of the bathroom in David Cameron's grace-and-favour Downing Street home (including costs and instructions given to contractors). Whilst the Cabinet Office initially delayed in replying to the request and ultimately refused to release the information sought by Watson, the Information Commissioner's decision means they must now back down. This illustrates the way in which FOI can be used by Parliamentarians to highlight a particular issue (even if it is not particularly high profile, as in this case) and then successfully influence the outcome. See the Constitution Unit's study of FOI and Parliament for more on how Parliamentarians are using FOI.

Hillsborough disaster documents to be released by June 2012

The Cabinet Office has agreed to release documents relating to the Hillsborough football stadium tragedy of 1989 in which 96 people died by June next year. The documents record cabinet discussions involving the then Prime Minister Margaret Thatcher in the aftermath of the tragedy, and were the focus of an FOI request made by the BBC in 2009. Now that a date for the release of the information has been set, the Tribunal hearing which had been scheduled to consider the government's appeal against the FOI request has been cancelled.

FOI has negative effect on governing, says Cabinet Secretary

Echoing former Prime Minister Tony Blair's sentiments, Sir Gus O'Donnell has stated that the FOI Act was a mistake which has impacted negatively on governing by restricting the freedom with which ministers can discuss policy. The top civil servant (who is soon to retire) argued that because all official documents are now accessible to the general public (and media), ministers are wary of what they say for fear of it being publicised. See the Constitution Unit's blog for more on this.

Animal Rights campaigners win FOI battle against Newcastle University

The Information Tribunal has ruled that Newcastle University must disclose licences regarding its experiments on primates. Requests for information about the use of animals in scientific experiments are common and in 2008 the British Union for the Abolition of Vivisection (BUAV) filed an FOI request regarding tests carried out on up to 21,000 animals by researchers at Newcastle University. The University rejected the claim for information stating both that (a) it did not have the information in question, but also (b) if details of the research were released before its completion, other sensitive research programmes could be jeopardised. This landmark decision (a result of BUAV's appeals) is likely to pave the way for other animal rights activists to make similar challenges in the future.

Northern Ireland government departments taking longer to answer FOI requests

Northern Ireland's annual Freedom of Information report for 2010 has found that one in ten requests sent to governmental departments are not being answered within the statutory twenty working day limit. Worryingly, governmental departments appear to be getting worse, with time limits being missed more frequently in 2010 than prior to the restoration of the devolved government in 2007. Furthermore, there has been a decline in the proportion of requests resulting in full disclosure of information.

FOI and Parliament

Peers debate transparency

The government's commitment to transparency and openness was debated by members of the House of Lords this month. Lord Elton, who tabled and opened the debate, described the government as a leader in bringing transparency to its overseas aid programme. Lord Prescott, the former deputy Prime Minister, was particularly scathing towards the government's commitment to transparency and made direct accusations relating to the behaviour of Michael Gove, Eric Pickles and Liam Fox. Baroness Warsi responded to Lord Prescott by saying that Cabinet Secretary Gus O'Donnell would look into the claims.

Plans to extend FOI to 100 more organisations

In the same month as the Lords' debate, the government announced plans to widen the scope of FOI to 100 more organisations. Furthermore, Jonathan Djanogly MP, Parliamentary Under-Secretary of State for Justice, told the Commons that the government was holding discussions with a further 200 bodies and plans to consult 2,000 housing associations in the following year. In October, FOI was extended to include three more organisations (UCAS, The Association of Police Chief Officers and Financial Ombudsman Service).

Extraordinary Rendition: information must be disclosed

The All-Party Parliamentary Group on Extraordinary Rendition continues their fight to access documents. This month, the Information Tribunal ruled that documents evidencing British involvement in the secret rendition of UK residents to Guantanamo Bay and other similar jails must be disclosed. The Labour government denied being involved in rendition, a claim which after persistent questioning was years later found to be false. The All-Party Group argues that disclosure of documents relating to rendition is vital in restoring faith in the Foreign Office.

Open Data: Ministry of Justice release court data

The Ministry of Justice has released 1.2 million records relating to sentencing in 322 magistrates and crown courts in England and Wales. Whilst the names of defendants' are omitted from the database, other personal details such as age and ethnicity are included. The move is part of the coalition government's aim to increase transparency and was described by transparency campaigner William Perrin as "a great leap forward for transparency in the UK, for which MoJ should be warmly praised."

Local Government

The Constitution Unit has just published its report on English local authorities' experiences complying with the Freedom of Information Act 2000 and the Environmental Information Regulations (EIRs) throughout 2010. The report aimed to gain an understanding of the numbers and types of requests local authorities received throughout 2010, the problems they encountered with compliance and their thoughts about different aspects of FOI. The study estimated that numbers of FOI requests to local authorities have increased by 20 per cent from the 2009 estimate. Despite the increase in requests, councils seemed to be coping better, with an increased number of requests being answered within the 20-day limit and at a lower cost than in previous years.

FOI Elsewhere

The Associated Press: access denied

This month, the Associated Press published their findings of a world-wide study of FOI, in which they submitted questions to 105 countries with FOI legislation. Fundamentally they found that countries are not following their own FOI laws. Only 14 countries answered requests for information in full and within their set deadline, with a further 38 eventually providing most of the requested information. Thirty-five countries failed to even acknowledge that they had received a request.

Interestingly, newer democracies seemed to be more responsive than many older democracies. Guatemala, Turkey and Mexico all proved efficient, providing information promptly. In stark comparison, Canada requested a 200 day extension, and Associated Press had to wait 6 whole months for the USA FBI to send them "a single sheet with four dates, two words and a large section blanked".


Even in Australia, a country perceived as being an open and well established democracy, access to government information is not absolutely guaranteed. According to one newspaper, "Our bureaucracies have adopted the comparative secrecy of Whitehall, where information is made public only after weighing up the risks of doing so". Specifically within the state of Victoria, an ombudsman has said bureaucrats are failing to comply with FOI rules, and instead use the Act to protect information.

Transparency International: Corruption Perception Index 2011

Transparency International (TI) has released findings of its annual study of perceptions of corruption in public sectors throughout the world. The study uses information gathered by a number of organisations (such as Freedom House and the World Bank) which is then collated to produce a final score for each country. Assessments and surveys were carried out in 183 countries, with questions focussing on perceived levels of corruption in public authorities fundamentally because corruption by definition is illegal and thus secretive in nature. Included in their measure of corruption perception were questions relating to government transparency, accountability and the ease with which citizens could access information relating to public affairs. In their report, TI highlights the number of protests which have occurred over the past year, and note one common cause: the need for increased transparency and accountability of leaders. According to TI, the vast majority of countries assessed score below 5 points ("0" meaning "highly corrupt" and "10" meaning "very clean"). New Zealand scored highest ("9.5"), with North Korea and Somalia both scoring just "1".

Isle of Man

The Isle of Man is yet to make any final decisions with regard to passing an FOI Act. Alan Bell, the Chief Minister has said that implementation of an FOI Act could come at a high cost, and therefore more government analysis is needed to consider the financial impact of its introduction onto the Isle of Man. The cost of FOI has long been cited as a reason to not pass the Law, discussed in more detail on the Constitution Unit's blog. Because of on-going delays, the Isle of Man government has been accused by a local political lobby group of showing "no commitment" to bringing FOI to the island.

USA: "Climategate" continues

In Virginia, the "climategate" scandal continues. Last year Attorney General Ken Cuccinelli requested the research papers of Michael E. Mann, a climate scientist who advocates the theory of man-made climate change, and former professor at University of Virginia. Cuccinelli aimed to discover whether Mann had fraudulently obtained grants to pay for his research. Whilst this request was being considered by a court, a conservative think tank filed a request for the same documents and 12,000 emails. The University of Virginia is resisting the request. This case sits within the larger climategate scandal in which leaked emails allegedly revealed that scientists were manipulating data relating to climate-change to support their theories.