The Constitution Unit


Monthly Update: September 2011

Freedom of information in the UK

Local Data Panel: "Public transparency should follow public money"

Responding to the government's FOI review, The Local Public Data Panel is proposing the government should consider amending the legislation to apply it to all publicly funded services "regardless of the organisation that delivers them". (This is a similar sentiment as expressed by the Public Accounts Committee - see below). The LPDP also proposed that data that the public has the right to obtain under FOI should be published as open data.

"These two proposals reflect the principle that public transparency should follow public money," the Panel said. "Implementing them would provide consistency in the application of this principle across all publicly funded services."

You can read the LPDP's statement in full here.

Information rights need to be taught in schools says ICO

The Information Commissioner's Office is arguing for information rights to be embedded in the school curriculum. They have launched a research tender to investigate how to do this.

The ICO notes research which has found 88 per cent of secondary school and 39 per cent of primary school children have a profile on a social networking site. However, 60 per cent of respondents hadn't read the privacy policies of the networking sites they use, 32 per cent didn't know what a privacy policy was, and 23 per cent said they didn't know where to find it.

The ICO notes its own initiatives to educate young people about privacy and information rights "have only limited chances of success unless the education of information rights becomes a more mainstream component of a young person's formal education."

New guidance for Higher Education institutions

The ICO has released guidance for Higher Education institutions responding to FOI requests. The guidance comes after the Commons' Science and Technology Committee urged clarification following its investigations of the 'climate-gate' scandal involving the University of East Anglia.

The guidance uses case studies from various requests to illustrate the exemptions available (or not available) for academics that can help address some of the issues that emerged following the East Anglia case (and those to come out of a series of workshops regarding research and FOI).

The ICO's Steve Wood said "It is important that all higher education institutions comply with their obligations under freedom of information legislation. However, we appreciate the distinctive challenges that requests can pose. This guidance should help institutions to understand when they can apply exemptions to protect important research information."

The guidance also follows a conference hosted by JISC (a body dedicated to information technology use in education) regarding research integrity, covering themes such as good data management and principles for sharing and archiving data. All the resources from the conference are here.

The issue of access to academic data is being discussed in several different forums at the moment. The Lancet has published an article by London-based epidemiologists regarding access to researchers' data for the benefit of public health. Time for fair trade in research data argues that despite ethical and practical barriers, researchers must be encouraged to share their data. This needs to happen with explicit incentives - built into funders' criteria, journal publication and university guidance.

Meanwhile, a case is going to the European Court of Human Rights regarding the dismissal of a Swedish academic for their refusal to release their work on Attention-Deficit Hyperactive Disorder to other researchers.

Prof Christopher Gillberg undertook a research project involving behaviour disorders in children. Assurances were made that sensitive data provided by the children and parents participating in the study would not be disclosed.

Two other researchers applied for the data of the study, and were granted access, however with stringent conditions on its re-use. After various court appeals and decisions, Gillberg refused to provide the data, and later his colleagues destroyed it. He and his colleagues were fined and given suspended sentences. Gillberg's case to the European Court on Human Rights centres on Article 10 - "because his promise of confidentiality to the participants in the research was allegedly imposed on him by the university's ethics committee, as a precondition for carrying out his research."

NHS reforms "damaging to health information rights"

The Campaign for Freedom of Information (CFOI) has criticised the coalition government's NHS reforms, "expressing concern that the public's rights to information about the NHS are likely to be increasingly constricted by the reforms in the Health and Social Care Bill."

CFOI's concerns have been expressed in a letter to Health Secretary Andrew Lansley, and centre around the information sharing between NHS bodies and the providers they commission work from. NHS bodies are subject to FOI, and those working for them are also contractually obliged to provide information to those bodies to help them answer FOI requests.

However, the clause in the Bill that explains this relationship notes specifically the types of information that the contractor will have to supply to the NHS body for FOI purposes, thus omitting the many other kinds of information that would otherwise be obtainable via FOI.

Financial Times alleges Gove uses personal email to avoid FOI

The Financial Times [paywall] claims it has copies of emails showing top-ranking officials in Education Minister Michael Gove's office advocating the use of personal email addresses to avoid disclosure under FOI.

The newspaper quotes one of Mr Gove's advisers, in an email to his colleagues, saying he will not answer emails to his official department account, but only those sent to a gmail account. It alleges that officials have avoided answering FOI requests, as they have been "unable to find" information not stored on their official government web addresses.

However, the BBC reports a source from the DfE claims the email from Gove's advisor is referring to emails about Conservative Party business only, not to government business. "The FT story gives an entirely misleading impression of [the] email." (Whitehall officials are also encouraged to not use .gov email accounts for party-political business.)

The Huffington Post UK claims it has "seen emails from a Department for Education official, in which he appeared to be putting pressure on a primary school in England to convert to academy status before the end of the last summer term…. sent at the end of June from the official's personal Hotmail account, in clear violation of Department for Education rules on email correspondence." The Independent also claims lobbyists have admitted liasing with government officials and advisors via text message as an attempt to avoid FOI.

The ICO has written to DfE's permanent secretary regarding the Financial Times allegations. A spokeswoman for the ICO said the Information Commissioner was making inquiries but had not decided whether to launch an investigation.

Journalist blogger David Higgerson notes, "For a government which is allegedly committed to transparency and openness, it's a worrying sign that one of the most senior ministers… appears to be acting in such a secretive way." Anonymous FOI officer 'FOI Man' notes the problems of attempting to avoid FOI in this way:

"The DfE have argued that the emails related to Conservative Party business. If so, then technically there is nothing wrong with what they are doing. But the flip side of s.3(2) is that even if such business was carried out on DfE accounts, it would not be subject to FOI. So there's really no need for it to be carried out using separate email addresses. In fact, many might well take the view that it isn't a good idea - aside from the risk of somebody concluding that you might be trying to hide something, there are also potential security risks connected with using private email accounts which are not generally subject to the same levels of encryption as Government email accounts."

CFOI too are calling for tougher sanctions on officials who attempt to destroy or hide information to avoid FOI. Another anonymous local government blogger discusses of the implications of Section 77 of the FOI Act in this case, here.


Improving campaigning using FOI

Many NGOs hesitate to use FOI, says Tom Baker from the National Council for Voluntary Organisations, despite its usefulness. His blog on the Guardian website offers some helpful tips to encourage FOI use and get good results.

His tips include being specific and asking for advice. On a related note, Baker has also blogger on his experiences using FOI to 'measure' the campaigning done by NGOs.

Sending FOI requests to the 18 biggest government departments, asking for information about the campaign letters, postcards, emails or leaflets that seemed to be part of a wider coordinated campaign, he has compiled data on the activities of campaigning organisations.

His FOIs had identified that "Government departments have received at least 946,000 actions in the 12 month period from 1st May 2010 and 1st May 2011," and "the majority of actions are on the issues of Sustainable Development including Climate Change, nuclear and energy policy; International Development; Animal Welfare."

ICO orders release of previously vetoed minutes

The ICO has ordered partial release of Cabinet minutes from 1997/98, which were previously ordered for release but then vetoed by then-Justice Minister Jack Straw. This was the second time the ministerial veto had been used.

For a discussion of the ICO's latest decision, see Katherine Gunderson's blog for the Campaign for Freedom of Information.




FOI needs to be extended to help improve Private Finance Initiatives

The Public Accounts Committee has recommended FOI be extended to private companies. Their call comes as they release a report looking at lessons to be learned from PFI projects. 

The Committee criticises previous governments for their reliance on PFIs as the "only game in town" while the results - value for money for the taxpayer - have been far from realised.

Rt Hon Margaret Hodge MP, Chair of the Committee of Public Accounts, said: "We have seen information which strongly suggests that investors are making excessive profits from selling on shares in PFI projects. However, the Government currently lacks sufficient information on the returns made by investors, who have been able to hide behind commercial confidentiality… The Government should extend freedom of information to private companies providing public services and should introduce arrangements for sharing equity gains."

The full text of the Committee's report can be found here.

Data Protection

Facebook flooded with requests for personal data

The Guardian reports Facebook is being inundated with requests to release the personal data of its users, as part of an 'annoyance campaign.

The campaign, How to annoy Facebook, was started by a user on the social news site Reddit. According to technology blog ZDNet, the company's data access request team have been forced to send out emails telling users there will be a significant delay in getting their personal data out to them.

"The amount of data would include a user's photo gallery, wall posts and all other personal data such as date of birth. ZDNet reported that a typical personal data file will be a PDF that runs to more than 1,000 pages and more than 100MB in size."

The UK information Commissioner noted that while some data protection laws in Europe specify the data must be provided to the applicant in CD-ROM format, the UK law allows Facebook to supply it in any form that is most convenient for it.


United States

Photos of bin Laden's death need to stay secret says US government

The ABC reports court documents filed by the Obama Administration claim public disclosure of graphic photos and video taken of Osama bin Laden after he was killed in May by US commandos "would damage national security and lead to attacks on American property and personnel."

The court documents have been filed after a FOI Lawsuit by Judicial Watch, after the Associated Press' requests were declined by the Pentagon. The AP asked for a range of information, such as contingency plans for bin Laden's capture, reports on the performance of equipment during the raid on his compound, and copies of DNA tests confirming the al-Qaida leader's identity. The AP also has asked for video and photographs taken from the mission, including photos made of bin Laden after he was killed. 

Tom Fitton, president of Judicial Watch, accused the Obama administration of making a 'political decision' to keep the bin Laden imagery secret. "We shouldn't throw out our transparency laws because complying with them might offend terroristsThe historical record of Osama bin Laden's death should be released to the American people as the law requires."

Open Government Partnership launched - 38 member states declare their commitment to transparency in New York

The member states of the Open Government Partnership met at the Waldorf Astoria Hotel in New York this month. The 38 states have issued a Declaration, which includes:

"We commit to promoting increased access to information and disclosure about governmental activities at every level of government. We commit to increasing our efforts to systematically collect and publish data on government spending and performance for essential public services and activities. We commit to pro-actively provide high-value information, including raw data, in a timely manner, in formats that the public can easily locate, understand and use, and in formats that facilitate reuse. We commit to providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process. We recognize the importance of open standards to promote civil society access to public data, as well as to facilitate the interoperability of government information systems. We commit to seeking feedback from the public to identify the information of greatest value to them, and pledge to take such feedback into account to the maximum extent possible."

The eight founding member states include Brazil, Indonesia, Mexico, Norway, Philippines, South Africa, United Kingdom, and the United States.

President Obama used the OGP launch as a platform to launch further Open Data initiatives in the US. Included is an initiative called 'We the People' allowing people to directly petition the White House, as well as plans for more published datasets in different areas of government activity.


New website to thwart journalists' scoops

The government of the Australian Capital Territory (ACT) is to start proactively publishing responses to FOI requests in order to stop journalists' 'scoops'.

The Canberra Times reports the new website is part of Chief Minister Katy Gallagher's plans to push FOI further: "There ought to be a presumption that information available to the government should also be made available to the community… The immediate thing is to start from a philosophical position that more communication is better than less communication; that more openness is better than less.''

Gallagher told the Legislative Assembly that "one of the perverse and unintended consequences of freedom of information" has been that the information released to an applicant has been edited by that applicant, "with only bits that suit their argument being made public.''

The new website, which will also be a repository for government reviews, briefings, background government reports as well as FOI responses, would help  prevent the media and political parties from selectively publishing the information as their access to the information would not be exclusive.


Plans for more transparency, but no plans for FOI...

An independent discussion paper commissioned by the Policy Council has set out a series of recommendations for the implementation of an 'information strategy', aimed at improving the relationship between the States and the community.

The report was written by Belinda Crowe, a former senior civil servant at the Ministry of Justice in the UK.  Crowe said the aim of the strategy "is to integrate good practise into the culture and working of government."

The paper does not set out to transpose the UK freedom of information model into Guernsey, nor does it advocate or oppose freedom of information legislation at some point in the future. Instead it sets out a series of principles that would need to be in place before an informed consideration of the need for any formalised code or legislation could take place.

Some Guernsey States Members responded to the report saying as legislators they too felt they needed better access to information. "Members of the public know as much as me.. so there needs to be information for all of parliamentarians as well as members of the public and that may be a unique challenge for Guernsey I think," said Deputy Barry Brehaut, Scrutiny Chairman.

The document also suggested that the island's government could use social media to interact with islanders, and allow residents to attend all States department meetings.

Links to the ICO decisions of Sep 2011

Search the First-tier Tribunal (Information Rights) decisions of Sep 2011