The Constitution Unit


Monthly Update: September 2010

September 28 was World Right to Know Day. The World Resource Institution has some Q and As about how and why FOI laws are spreading across the globe. Article 19 celebrate some FOI milestones, including the fact that 5 billion people have access to official information now.

Freedom of Information in the UK

Tony Blair regrets FOI

In his recently published memoirs, the former Prime Minister Tony Blair regrets his party introduced the Freedom of Information Act while he was in power. In his self-criticism over the passing of the FOI Act, Blair even calls himself 'an idiot', 'naive' and 'irresponsible'.

Blair argues that FOI is used mainly by journalists instead of ordinary people for whom the act was designed. In an interview with the Guardian he also states that FOI endangers reasonable decision making:

"It's not practical for government… If you are trying to take a difficult decision and you're weighing up the pros and cons, you have frank conversations... And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious. That's why it's not a sensible thing."

Mr Blair's recent hostility towards the Act has sparked a lively debate on the purpose and effects of FOI in UK, with likes of Lord Prescott, former deputy prime minister during the Blair years, siding with his former boss and numerous FOI campaigners and journalists baffled by the former PM's words.

MoJ plans to extend FOI, and their latest FOI stats

Ministry of Justice has announced their plans to extend the current freedom of information legislation in order to increase transparency. The previous government's plans to extend to organisations such as private prisons were scuttled following public consultation.

The latest FOI statistics collated by MOJ were released on 23 September: Answers to FOIs made to departments of state were more timely; and more likely to be granted in full than the previous quarter.

National Archives launches the first UK Open Government Licence

The National Archives has launched the first UK Open Government Licence, "making it faster and easier than ever before to freely re-use public sector information". The Government says the move is a key element of their commitment to greater transparency. Tim Berners-Less of the Transparency Board argues that "It will enable inventive people to build innovative new applications and websites which help people in their everyday lives."

The new licence removes the existing barriers to re-using information - it is a streamlined, single set of terms and conditions which provides assurance to anyone wishing to use or license government information at a glance. Being machine readable, it is completely flexible and works in parallel with other internationally recognised licensing models such as Creative Commons.

It will replace the existing Click-Use Licence and enables free re-use of a much broader range of public sector information, including Crown Copyright, databases and source codes. In addition, the new UK licence will not require users to register or formally apply for permission to re-use data.

ICO outlines its policy

Katherine Gunderson from the Campaign for Freedom of Information blog has helpfully publicised the ICO's publication of its 'Lines to Take' policy. The policy documents "set out how the ICO approaches certain types of Freedom of Information complaints. The disclosure follows a request by Alex Skene, a volunteer who helps maintain the WhatDoTheyKnow.com website."

Guardian in Information Tribunal over Prince Charles's lobbying letters

The Guardian has been involved in an Information Tribunal case on whether the newspaper is entitled to access Prince Charles's lobbying letters sent to cabinet ministers. For five years ministers have resisted the Guardian's freedom of information request for a set of the prince's letters from 2004 and 2005.

Furthermore, it has been recently claimed that the royal family has pressured government to tighten up FOI regarding to the publicity of Prince Charles's letters. The royals would like to make sure that there is no chance his lobbying will be made public under the legislation for 20 years or five years after his death, whichever is longer.

Parliamentary lobbying by Prince Charles is considered controversial by some who claim his letters go straight 'to the top of the pile', but the extent of his influence in policy-making remains hidden from the public.

The Palace is also facing criticism after documents obtained by the Independent show the Palace tried to claim a heating grant from a programme designed to help low-income families. The Daily Mail too has revealed the Palace also spent £96,000 on chandelier cleaning.

BBC wins Information Tribunal case

Information Tribunal has reached a verdict in favour of disclosure on a case whether the government should release the minutes of the 1986 cabinet meeting during which Michael Heseltine walked out and resigned as defence secretary.

Cabinet minutes, which were requested by the BBC's Martin Rosenbaum in 2005, will now be published unless the Cabinet Office decides to appeal against the decision or use its right of veto to overrule the tribunal. Cabinet Office has five weeks to make its decision.

Meanwhile, on the other side of FOI, the BBC has released information showing it has spent £392,896.05 in legal fees to external lawyers to deal with Freedom of Information (FOI) requests since 2005. The costs were disclosed after a request made through WhatDoTheyKnow.

The Guardian reports that Mark Thompson, the BBC director general, highlighted the frustration caused by some requests made to the BBC in a lecture in Edinburgh in August: "You can get an idea of the intellectual weight of some of the attacks [on the BBC] from the freedom of information requests we get in. At the BBC, we believe in FOI as journalists and as a public body we believe we should be as open as we can…But I have to say it's still painful to spend public money that could be invested on programmes answering weighty questions like - all these are real by the way: How many toilets do you have in Television Centre and how many accidents take place in them each year? What's your policy on biscuits? And does Gordon Brewer have two fully-functioning ears? He does, by the way."

Transparency catalogue of charities established

Chris Haggart, the founder of website OpenlyLocal, a local transparency catalogue, has set up a similar platform for the charity sector. OpenCharities will "open up the information on the UK's Register of Charities, and make it available to the community in a variety of forms."

FOI and Parliament

MP using FOI to obtain polling data

Walthamstow Stadium is being proposed for development, and residents of E17 are being cold-called by a polling company for their views.

But local MP Stella Creasy has received complaints from residents who say that the option to return greyhound racing to the stadium - favoured by many- was not allowed as a response to the survey questions. They were also angry that the caller did not immediately reveal they were polling on behalf of London & Quadrant, the stadium owners whose plans are to build homes in place of the stadium.

Ms Creasy claims L&Q have refused to reveal the results of the survey to her, so she has made an official complaint to the Market Research Society and has applied for the data under the Freedom of Information Act.

MP facing problems when requesting information

During a parliamentary debate, Leicester MP Keith Vaz (Lab) has revealed an interesting insight on practical aspects of how FOI works.

He had asked every Primary Care Trust how much they have spent on preventing diabetes. According to him, some PCTs thought his question was a FOI request and thus instantly became very defensive. After it turned out that he would not get the information needed, he asked the Minister of State for Care Services to 'get this information from his Department and place it in the Library of the House'. Vaz pondered whether it is usual that an initial response to a FOI request by MP would be a defensive one.

Amendment of FOIA

In a recent Commons debate, Tom Brake MP (Lib Dem, Carshalton and Wallington) has proposed an amendment to the FOI Act to abolish the ministerial veto. The amendment also proposes "to limit the time allowed for public authorities to respond to requests involving consideration of the public interest and to amend the definition of public authorities".

The moving of the bill prompted Denis MacShane MP to suggest extending the Act to all media organisations too: "They have far more power than many public agencies, local councils and the rest, which are covered by FOI legislation. What our media organisations and the oligarchs - often from overseas - who own them decide to do has a huge impact on our public life, and any company that is in receipt of taxpayers' money should also be covered by FOI".

FOI and Local Government

Councils begin to speak out about the cost of FOI

This month's edition of the Local Government Chronicle has a focus on the costs of transparency, and features findings from our annual survey's of local government officials.

Malkiat Thiarai from Birmingham City Council fears that new regulations to publish items of council spending over £500 will only increase the number of FOI requests he receives. "If we say a payment was made to company X, but it doesn't tell you why we spent that money, it is likely to lead to more enquiries."

Northamptonshire County Council CE Paul Blantern too fears the moves to greater transparency will only encourage more requests, which are already stretching tight local council budgets. He's calling for limitations to round-robin or 'fishing' requests.

In Aberdeen, the City Council has approved a new plan to reorganise records management after the Scottish Information Commissioner investigated its consistent failing to respond to requests on time.

Councillor Kevin Stewart said: "Some of the requests are costly in terms of the amount of staff time it takes to gather the information. I believe information should be open and transparent but I think that some of the requests are ludicrous. We have to put it across to the public, and those who are making the requests, how much it costs to get the information - how much of their money it costs."

Data Protection

EU to take UK to court

The European commission is taking the UK government to court for breaching European Union laws on internet privacy.The Guardian reports that the court action follows complaints made by broadband users to the Information Commissioner relating to the secret use of Phorm activity-tracking software used by BT. It enabled BT to monitor users' online habits, an experiment they dropped in 2009 after tests in 2006 and 2007.

The European commission twice wrote to the UK government in 2009 asking it to change privacy laws and it has now said it will use court action to force the UK government to more fully implement the Privacy and Electronic Communications Directive.

BT argue it is "simply inaccurate" to link the court action to the company. "The potential infraction proceedings relate to an alleged mis-implementation of EU law by the UK government. As such, they are a matter for the EU and the UK government. It is simply inaccurate to describe them as relating in any way to BT," the company said.

ICO investigating TalkTalk and ACS:Law

A series of complaints by internet service provider TalkTalk's customers has triggered an investigation by Information Commissioner's Office on processes by which TalkTalk collects data about websites that its customers visit.

TalkTalk defended the move stating that it is "not interested in who has visited which site - [this is] simply scanning a list of sites which our customers, as a whole internet community, have visited." The recording of customers' browsing behaviour has been a part of a trial for a new security product, which aims to create a master blacklist and a whitelist of dangerous and safe URLs.

However, Commissioner Christopher Graham says he is "concerned that the trial was undertaken without first informing those affected that it was taking place. You will be aware that compliance with one of the underlying principles of data protection legislation relies on providing individuals with information about how and why their information will be used."

The ICO is also going to investigate ACS:Law after the firm accidentally exposed personal details of 5,300 Sky Broadband customers suspected of illegally downloading adult films. ACS:Law  is an anti-piracy law firm which takes legal action against individuals accused of breaching copyright laws. The details of the Sky Broadband customers - which had been collected for the purpose of pursuing these individuals in court - were accidentally disclosed when ACS:Law reinstated its website following an online attack by piracy activists. Sky has announced that it is suspending all contact with ACS:Law following the breach.

UK government launches consultation on E-Privacy Directive

DataGuidance reports that the Ministry of Business, Innovation and Skills (BIS) has launched a consultation into how the revised E-Privacy Directive (2002/58/EC) - including the opt-in cookie provision - should be transposed into national law. '[I]t is important that the [opt-in cookie] provision is not implemented in a way which would damage the experience of UK internet users or place a burden on UK and EU companies that use the web', reads the consultation.

FOI Overseas


Results from the annual survey of Irish workplaces has found increasing pressure on public servants as a result of accountability mechanisms, including FOI. The survey finds this unsurprising in the political context of 2009:

"Accountability is also an issue for a substantial proportion of the public sector: 32 per cent of the public sector experiences intense pressure as a result of scrutiny by the media; 25 per cent as a result of requests under the Freedom of Information Legislation… [which has risen from only 7 per cent of the sector in 2003]…

"In early 2009, there were a number of high profile controversies involving travel and other expenses of politicians and senior officials in public sector organisations and intense media interest in the extent to which large expenditures in the public sector were delivering value for money. In this context, it is not surprising that the issue of accountability and media scrutiny were sources of intense pressure."

Isle of Man

Peel Commissioners have criticised the draft of Freedom of Information Bill for focusing too much on local authorities rather than central government and containing too much loopholes to be an effective scrutiny tool for citizens and media.

Commissioner Alan Jones said of the bill: "If you are going to have a Freedom of Information Bill, it should make absolutely clear what is to be kept secret, but this bill doesn't do that."

Some of the provisions of the bill which are said to be vague or overly restrictive include the exemption of the Lieutenant Governor and Council of Ministers and the fact that information can be refused if it relates to the formulation or development of government policy, communications between ministers or advice from the Attorney General.


In September, the Liberian Senate approved the new Freedom of Information Act, which aims to empower both the media and ordinary citizens to freely seek information about the operation of both Government and NGOs.

Among others, Article19, has welcomed Liberia's new FOI legislation and has urged President Ellen Johnson Sirleaf to immediately sign and implement the law. According to them, the law includes many progressive features, including a pre-emption of existing secrecy laws and rules, the creation of an independent Information Commission, and a public interest test to limit exemptions.


The Treasury has released its briefings to the incoming Coalition Government. The  brief prepared by Treasury in the event of a Coalition election victory stressed the policy challenges it would face managing long-term structural changes, including the ageing of the population, poor productivity and climate change.

The briefs were heavily censored before being released under a Freedom of Information request, with Treasury's entire commentary on the Coalition's broadband policy blacked out. However, the briefs show Treasury was unhappy with the Coalition's election promises over cutting immigration, arguing instead that population growth rates over the past five years had significantly improved Australia's ability to deal with an aging population.

USA: Mixed report on efforts to open the government

OpenTheGovernment.org, an American NGO campaigning for freedom of information, has released their annual Secrecy Report Card, which indicates that Obama administration has made noticeable progress in several areas of government transparency, but also has areas to still work on.

For example, the report states that the backlog of FOI requests dropped 40 per cent, but at the same time the percent of Federal Advisory Committee meetings that were closed to the public rose to a new high - 73 percent.

USA: Supreme Court to decide whether corporations are entitled to 'personal privacy'

The Supreme Court is set to look at the case of whether corporations are entitled to privacy like other individual persons. The matter concerns whether records AT&T  turned over to the government as part of a 2004 billing investigation should be disclosed to its competitors.

The Huffington Post reports that in 2005, the Federal Communications Commission ruled that AT&T should not be entitled to the disclosure law's 'personal privacy' exemption. But a Third Circuit court reversed the FCC's ruling in 2008. In interpreting the phrase 'personal privacy', the court included corporations in the law's definition of a 'person'. Corporations, the court held, should enjoy the same right as individuals to challenge the release of documents submitted to the government because such a release infringes on their right to personal privacy.

Six public interest groups have argued that unless the Supreme Court reverses this Third Circuit ruling, "records about safety violations at a coal mine, environmental problems at an offshore oil rig and financial shenanigans at an investment bank," could be kept secret.

New Zealand

The Official Information Act 1982 has been examined by the Law Commission and its discussion paper on improving the Act is open for comment.

While acknowledging the law works well - and concluding that "change to the basic philosophy of the Acts is not in contemplation," - the Commission has identified some shortfalls.

"Agencies find some of the withholding grounds difficult to apply, and requesters can also have difficulty understanding them. We ask whether any of the grounds would benefit from being expressed differently, or whether more guidance is needed to assist users in working with them. Compliance with the Acts can also sometimes involve considerable resource, and we ask whether there is any way in which unreasonably large requests can be contained so that benefit and cost can be kept in proper balance."

Submissions close 10 December.


Washington-based think tank the National Security Archive have expressed doubts over the fairness and effectiveness of Mexico's much lauded FOI regime.

The NSA officials are visiting Mexico to take part in a week of activities launched by México Infórmate, a civil society initiative that promotes FOI.

Thomas Blanton of the NSA says while Mexico's system of access to information is institutionally strong, and even serves as a model worldwide, government officials routinely ignore Federal Institute for Access to Public Information (IFAI) decisions, with no consequences.

It is incredible, he argues, "that the attorney general, who should be the first person to abide by the law, chooses to disregard the IFAI's decisions." He predicted that the next battles over access to public information in Mexico would play out in the Supreme Court. "The culture of secrecy lives on, which is a worldwide problem, but in Mexico it is more difficult because of the levels of corruption. The IFAI cannot punish unless people go to court."

Further, restrictions on access to information from public entities have been stiffened in the second administration of the conservative National Action Party (PAN), under President Felipe Calderon, who took office in late 2006. "This is a difficult time now in Mexico with regard to access to information, because they have realised (in the government) that these laws are causing problems, and they don't like it."

South Africa

Criticism continues over the bill to amend the South African FOI Act. The minister for State Security has expressed his concern over the negative publicity SA's new information bill could cause.

In addition, Pansy Tlakula, the African Union special rapporteur for media and freedom of expression, has said that the bill "will undo the good work the Republic of South Africa has done to ensure the freedom of information".

Other critics of the new bill include writer Andre Brink, who believes the bill shows "apocalyptic arrogance" and that it recalls the "worst of apartheid regime".

ICO decisions
September 2010

Information Tribunal decisions
September 2010