The Constitution Unit


Monthly Update: October 2011

Freedom of Information in the UK

Hillsborough documents to be released

Following the signing of an e-petition by nearly 140,000 people, the Commons was called to debate the full release of documents relating to the 1989 Hillsborough stadium disaster in which 96 people died. During the debate, Home Secretary Theresa May stated that all official documentation (including Cabinet minutes) would be given to the independent panel reviewing the incident, a decision backed by MPs. Hailed as a "victory for democracy and people power" by Labour MP Steve Rotheram, the debate was the first ever to be held as a direct result of an e-petition. Furthermore, the decision to release Cabinet minutes and correspondences relating to the disaster (which had been withheld by both Labour and Conservative governments) marks a wavering of 30-year disclosure rules which exempt Cabinet minutes from being released.

Whilst the Hillsborough disaster illustrates how governments past and present have taken different stances on this issue, David Higgerson points out that, ultimately, the Government must abide by the same FOI rules as other authorities.

Families of victims have called on The Sun newspaper to reveal its sources for their infamous story entitled "The Truth", released just days after the tragedy. The story purported that the drunken and disorderly behaviour of Liverpool fans had ultimately led to the 96 deaths.

FOI to be extended to bodies providing public services

The extension of FOI (via the Freedom of Information (Designation as Public Authorities) Order 2011) has been approved by both Houses of Parliament, thus extending the FOI Act to four bodies with public functions or to contractors providing public services: the Association of Chief Police Officers, Financial Ombudsman Service and the Universities and Colleges Admissions Service. All four have been earmarked for FOI inclusion since July 2009.

FOI to be scrutinised by the MOJ

The way in which FOI has worked in practice since its enactment in the UK is soon to be examined. Known as "post-legislative scrutiny", the procedure could have an impact on how FOI develops in the future.  Whilst advocates worry that FOI may be scaled back as a result of scrutiny, private companies worry that it may be extended. Martin Rosenbaum reports that Minister Lord McNally acknowledged there was 'a tension within government' on how much to extend freedom of information to private sector bodies, although he added that the split was not along party lines.

Local Government

A guest post on FOIman's blog site gives a unique insight into the world of an FOI officer. According to the guest blogger, increasing work loads are coinciding with the cutting of resources. Resultantly, deadlines for answering requests are being missed, complaints are on the up, and morale amongst committed FOI officers is at a low. Please note that The Constitution Unit's Local Government Officers Survey will soon be published, so keep an eye on the website. (We'd also like to note the guest blog on FOIMan's blog was due to his absence in order to get married - congratulations!)

The above insider account potentially helps to explain the situation in York, where North Yorkshire Police have been found to be exceeding the 20 working day limit on responding to FOI requests in 56 per cent of cases. A local journalist received a response 98 days after requesting information through FOI. Their failure to comply with FOI timelines has resulted in their being monitored by the ICO. Echoing the account given by FOI man's guest blogger, the director of legal and compliance services for North Yorkshire Police explained that "Maintaining front line policing services means that changes have, of course, been made to the resourcing of functions like civil disclosure".

FOI Elsewhere

The EU adapts FOI Law to increase access for EU citizens


The European Commission's proposed amendments have been supported by the Constitutional Affairs Committee. The proposed changes would update EU FOI Laws to increase citizens' rights of access to files held by the EU. Whilst amendments to the Law are minimal, it is hoped they will help to clarify rules and increase transparency.

Emerging Regimes: The Bahamas, Singapore and Brazil

An FOI Act has been proposed in the Bahamas, providing the framework for individuals to request information from any public authority. However, the proposed Act includes a vast number of exemptions and wording of the legislation would allow public authorities to withhold information under many different circumstances. The Act would not apply to numerous public authorities and bodies of information including the Police and Defence forces, Department of Customs, Department of Immigration and the Financial Intelligence Unit. The Act has therefore been described as weak, and the Government criticised for protecting their own power.

In Brazil, the Senate has finally approved an FOI Bill after eight years of trying. The Bill will amend the country's constitution, establishing a right of access to information held by federal, state and municipal governments, state-owned and some non-profit organisations.  The legislation also outlines obligations to proactively disclose information.

In Singapore, Pritam Singh MP has called for the introduction of an FOI Act, arguing it would promote a more informed and engaged citizenry. His party (the Workers' Party) have proposed the creation of an FOI Act in both their 2006 and 2011 manifestos.


White House holds FOI workshops…in secret

The White House has been criticised for holding workshops on how to handle the obligations of FOI requests in complete secrecy. Reporters were not allowed to attend the workshop which was held in December 2009. Judicial Watch, a Washington-based organisation that uncovers and prosecutes government corruption is claiming to have found emails documenting the decision to block journalists from the discussion which was conducted by the Office of Information Policy in the US Department of Justice.

Controversial proposal to deny the existence of information

The Department of Justice have proposed a regulation that would allow federal law enforcement agencies to deny the existence of sensitive data to people seeking that information by means of FOI.  The DOJ has been fiercely criticised for the proposal, which would apply only to information that: 1) might "tip off" someone under criminal investigation, 2) compromise the identity of informants or 3) relate to information held by the FBI about intelligence or terrorism.  Fundamentally the proposals contradict the administration's pledge to increase transparency.  

CIA 'let off' by Manhattan Judge

A Manhattan Judge has declined to hold the CIA in contempt for destroying videos which legally should have been preserved. In 2005 the CIA destroyed 92 videotapes documenting the interrogation of 9/11 detainees, which had been the subject of FOI requests from numerous courts. Despite wilfully breaking the law, the CIA will not be held accountable in any way as, according to Judge Alvin Hellerstein they have provided a description of what they say was on the tapes and have established new measures to insure that the same does not happen again.

FOI request tracker in Iowa

The Governor of Iowa has created an internet site to monitor and track the progress of all FOI requests received by his office. The creation of the website is designed to increase transparency. Interestingly, requests for information have been made relating to lawsuits that have been made against the Governor, Terry Branstad. Apparently therefore the website is being used as a mechanism for accountability.

Big Tobacco v. Australian Dept of Health

Cigarette manufacturers have been swamping the Australian federal health department with FOI requests as a deliberate campaign against the government's plans to pass a law forcing tobacco companies to sell cigarettes in drab packaging, the first law of its kind. The health department has received 63 FOI requests, 52 of which were from 'big tobacco'. British American Tobacco Australia argues that it has been forced to make freedom of information applications because the Health Minister has refused to hold discussions with representatives from the tobacco industry.

This case highlights the difficulties which arise when FOI is used for controversial topics. See the Constitution Unit's August 2011 FOI update for the case of Philip Morris International's FOI request to Stirling University's Centre for Tobacco Control Studies.

Film-making competition to increase FOI awareness

Reporters without Borders have joined forces with CNN to hold a competition in which student film makers must make a short film answering the question: "why should we care about FOI?" Organisers of the competition say its aim is to raise awareness about the importance of FOI within contemporary democracies.

Reporters without Borders, who work to defend journalists and media rights have also carried out an investigative study of media control and censorship in North Korea, documenting attempts being made by others to fight against the regime and for FOI. North Korea is becoming increasingly less sealed off from the rest of the world with information flowing both in and out of the country. Smuggling and unofficial markets allow for the buying and selling of radios, mobile phones and DVDs, facilitating the circulation of imported media.

Venezuela moves to promote greater freedom of expression

The International Freedom of Expression Exchange (IFEX) is to meet with the United Nations Human Rights Council to discuss the promotion of greater freedom of expression in Venezuela. Endeavour to prevent escalation of attacks against the press in the 2012 election cycle. IFEX will make seven recommendations designed to prevent the escalation of attacks against the press in the 2012 election cycle.

Data protection in the UK

ICO must have power to conduct compulsory audits

Information Commissioner Christopher Graham has called for the ICO to be given the power to conduct compulsory audits for local government, the NHS and the private sector to ensure compliance with data protection laws. As it stands, only central government departments are subject to compulsory data protection audits. Certain organisations and sectors (such as those listed above) are causing concern with regard to their handling of personal information, yet have the right to decline when the ICO offer to carry out an audit. Speaking at the Tenth annual data protection compliance conference, the Information Commissioner stated:

"Helping the healthcare sector, local government and businesses to handle personal data better are top priorities, and yet we are powerless to get in there and find out what is really going on."

MPs have supported Graham's cause, stating that greater power must be given to the ICO if private sector organizations are to be compelled to undergo data protection auditing.

MPs call for criminals who steal personal details to be jailed

The Information Commissioner has been supported by the Justice Select Committee in his calls to give tougher sentencing to criminals who obtain personal details through deception and break data protection laws in so doing. The issue will be debated next week, so we await the outcome.

"Properly" anonymized data to be released

Up to now, anonymized data has been considered as "personal data" if an individual could still be recognized by the organization in possession of the data. The UK Information Tribunal has now ruled that "properly" anonymized data can be released under FOI. "Properly" anonymized data can be understood as data which has had certain identifiers removed so that in its releasable form, the original data controller would not be able to identify the individual.