The Constitution Unit


Monthly Update:February 2011

Freedom of Information in the UK

Free schools and FOI

The free schools project has been criticised this month for alleged secrecy. Free schools are in an unusual position in relation to the FOIA, as before they are established they are not classed as public bodies, and so cannot be the subject of a request for information under the Act. Jane Eades, a campaigner against a free school in London, has complained that while she is unable to get the information from the school itself, the Department of Education has refused, or allowed limited access to the documents it holds. She was quoted as saying, "[t]he whole free school movement is shrouded in secrecy. By the time many people hear there is going to be a free school in their local area, it has already been approved by the government."Lisa Nandy, Labour MP for Wigan, speaking of her own difficulties in obtaining information about free schools, commented that "[i]t is deeply worrying that there is such a lack of transparency around these schools given the impact they will have on children". Although the Government did not respond to articles on the issue, Toby Young, who is heading plans to create a free school responded to criticism from the NUT and the Anti-Academies Alliance, claiming that their criticism was 'a bit rich' as they are far from transparent themselves.

Freedom of Information and Parliament

Protection of Freedom Bill to reform FOI

This month saw the Protection of Freedoms Bill presented to Parliament, including a variety of changes to the FOI regime. Among those changes was the inclusion of companies owned by more than one public authority within the ambit of the FOIA.

Other provisions include "that all data published by public bodies is published in an open and standardised format", which should make it easier for requesters to manipulate data, and for third parties to access information that is released.

Finally, the reforms will prevent the Information Commissioner from serving more than one five-year term, something that some commentators have seen as weakening the role, while the changes will extend the procedural powers of the IC allowing the office to issue guidance and appoint staff without the approval of the minister.

Welcoming the anouncement, the ICO commented that "[t]he Bill engages with issues that have been longstanding concerns for us", but noted that it would be necessary to examine the Bill's proposals in detail to ensure that the proposals are properly realised in practice.

Rendition saga continues

Litigation surrounding the FOI requests of the All Party Parliamentary Group on Rendition was continued this month when Defence Secretary, Liam Fox MP, pursued the ongoing government opposition to the release of the information sought. Lawyers for Mr Tyrie, the chairman of the group told the Information Tribunal: "It is a particularly troubling aspect of these appeals that, in significant part, the MoD is maintaining its refusal to supply such information not on the basis of harm to public interest that would occur if such information were disclosed but rather on the basis that it would be too time-consuming to comply with the requests."

It should be noted, however, that government lawyers have also been opposing the release of information on the grounds that release might harm foreign relations with the United States, threaten national security, and cost more than the limit set by the FOIA. At the time of writing, the Information Tribunal was yet to publish its decision.

Project Merlin leads to proactive disclosure of bank payouts

Under the Merlin agreement announced by George Osbourne earlier this month, banks will have to publish the remuneration of the five highest paid 'senior executive officers' and the two highest paid executive directors on their boards. In announcing the agreement, Mr Osbourne claimed that the project would make London the most transparent financial centre in the world on remuneration.

The deal has been controversial, as it will not require those banks that were bailed out during the height of the financial crisis to publish the bonuses of their highest paid employees, including traders. Jon Terry, a reqard partner at PwC, highlighted that "many of the highest paid employees who do not have management responsibility" would not be covered, he added that "[i]t will therefore only provide a limited snapshot of bankers' pay". Lord Oakeschott, meanwhile, said that the agreement 'does not match up' to the commitments laid out in the coalition agreement.

High Court rules on costs exemption to FOI requests

A judgment rendered in January but published this month, has clarified the matter of the exception within the FOIA where the cost of providing the information would exceed the appropriate limit. In rejecting the arguments of the Chief Constable of West Yorkshire Police, Mr Justice Keith ruled that when calculating the costs of the request under this exemption, a public authority may not include the cost of removing information that falls within the exemptions. This decision should bring down the calculated costs for FOI requests, and may result in a greater number of requests leading to, at least, partial publication.

Local Government

Harrow Council considers publishing 'everything'

Harrow Council legal head, Hugh Peart, was quoted in The Lawyer this month calling for the proactive publication of everything that would be available under the FOIA, rather than waiting for requests:

"The default model for most councils is that 'we won't give anything away unless we have to'," said Peart. "I want to turn the whole edifice on its head. I want us to move away from the defensive position of keeping everything to ­ourselves. I want to say that everything's public except for a few obvious areas."

The anonymous blogger "FOIman", responded to this article highlighting some of the problems that would arise with such a scheme of proactive publication. In particular the routine publication of information such as emails could be a minefield. He cautioned public authorities against "oversel[ling] what they're doing". 

Council expenditure publication ongoing

The deadline for councils to publish expenditure over £500 came and went on 31 January, with eight councils failing to publish in time. While seven of the remaining councils promised to publish the information before the end of February, Nottingham City Council responded less cooperatively. Graham Chapman, the deputy leader of the council, is quoted as saying:

"We have said that we will publish accounts over £500 if it becomes a legal requirement to do so. We are happy for information to be transparently available for public scrutiny but feel that the time and money needed to implement this change is wasteful and a distraction at a time when we are coping with £60million of cuts in government funding. The government talks about localism but as this issue shows, it seems intent on interfering at every opportunity."

Commenting on the refusal, Martin Rosenbaum noted that "[i]f Nottingham is the only council maintaining this stance, it will be interesting to see how it withstands the pressure and inevitable accusations of secrecy."

Eric Pickles made further announcements this month launching a Draft Code of Recommended Practice for Local Government Data Transparency for consultation. The proposals include requirements for the publication of organisation structures including the names and responsibilities of employees who earn more than £58,200 (equivalent to the lowest grade of senior civil servants).

Council asked employee to waive right to use FOI and DPA in a compromise agreement

An FOI request carried on the WhatDoTheyKnow website revealed this month, that an employee of Cheshire West and Chester Council signed a waiver of his or her right to use the FOIA and the Data Protection Act to seek information from that council as part of a redundancy agreement. Speaking to the Chester Chronicle, Greg Jones, a spokesman for the Information Commissioner's Office said, "the only way legislation doesn't apply is when there is an exemption. There is no way you can sign yourself out of both pieces of legislation."

Asked for a comment on matter, council spokesman Ian Callister, said: "I am assured by our senior soliciter that our compromise aggreement with our ex-employee is entirely lawful and was agreed by that person's legal representatives". He declined to comment further on the agreement, on the grounds that to do so would, in itself, breach the agreement.

FOI Elsewhere

Nigerian House of Representatives passes FOI Bill

A FOI bill, initially introduced before the Nigerian National Assembly in 1999, passed the House of Representatives this month. While the Bill must pass the Senate and achieve the assent of the President, this event marks the most substantial progress on right to information legislation since former president, Olesegum Obasanjo, failed to assent in 2007. The news has been widely welcomed in Nigeria. Speaking to next.com, an unofficial spokeman for the president said it he was confident that the president would agree the bill remarking that, "[b]ecause of the historic implication and its deepening our democracy, the president will not hesitate to sign this bill when it gets to his desk." The minority leader of the House, Femi Gbajabiamila, also applauded the news, saying "[i]t's a welcome development and its long overdue. It will stimulate good governance which is predicated on access to information".

Pro-FOI protests in Ghana

This months saw FOI campaigners protesting outside Parliament House in Accra in favour of the passage of an access to information bill. The consultation process, expected to precede Parliamentary consideration of the Bill, is due imminently but has been so far held up amid concerns about funding. A pledge by the World Bank to provide $60,000-80,000 to fund the consultations, however, may aid this process.

Nana Oye Lithur, leader of the Coalition for Freedom of Information in Ghana responsible for the protest, asked Parliament: "why the delay?". He added, "[w]e are picketing Parliament this afternoon to press home our point and we urge Parliament to demonstrate commitment to transparency and accountability and to ensure that this bill is passed". Cletus Avoka, speaking as the majority leader of the Parliament, explained the delay on the basis that Parliament does not "want to pass a law that would not stand the test of time". 

Data Protection

Details emerge on failure of the Data Protection Act to meet the requirements of the EU's Data Protection Directive

Following a request for information to the European Commission in 2007, a process that was brought to an end following the intervention of the European Ombudsman, the details of the Commission's objections to the DPA have been released this month. The response includes questions about the compatibility of UK legislation with 11 of the 34 articles included in the Directive. Among those concerns were the scope of compensation, the right of access and rectification, as well as doubts over whether the ICO has sufficient powers to fulfill its supervisory authority.

Responding to the release in his blog post, Dr Chris Pounder, data protection specialist and the initial requester, addressed the comments of the Commission, but also railed against the delay and what he perceived as unwarranted secrecy. He said, "they have delayed wherever possible, required me to endlessly chase them up, and provided bogus arguments in order to stop the release of these details". The release of these details comes in light of the Commission's consideration of infraction proceedings, the result of which might require a reformulation of the UK's data protection legislation.

ICO cases

February 2011

First Tier (Information Rights) Tribunal

Most recent decisions