Monthly Archives: February 2012

The Accountability Deficit

Tim Turner on the important distinction between FOI and the Environmental Information Regulations. The latter of which are not up for parliamentary scrutiny

During the tenure of Tony ‘Nincompoop’ Blair (he said it), there were two major attempts to neuter FOI. The first was an attempt, which was kicked around as early as 2006, to place restrictions on the number of requests an applicant could make (you can see more about this here: http://www.cfoi.org.uk/foi161006pr.html). The second, following hard on the heels of the first, was a proposal from the Conservative backbencher David MacLean to exclude Parliament and MPs’ correspondence from FOI altogether. While MacLean’s ideas were explicitly aimed at protecting the elected elite, the wider fees proposals also contained an inherent bias because they would only have affected FOI. While all FOI public authorities are also subject to the Environmental Information Regulations, the effect of the UK’s twin track openness framework is often not considered. If FOI is now altered, it will open up a profound accountability gap.

The definition of environmental information was always wide, and it has yawned even wider since the Information Commissioner gained confidence in using it. At this point, a huge range of information has been ruled into EIR’s ambit. That information about waste, air and water quality, pollution, contamination, agriculture and flooding would be requested under the EIRs can hardly be a surprise. But decisions from the Information Commissioner have included a huge range of other areas – virtually all aspects of planning and building from approval through construction and renovation to demolition, parking and traffic regulation, the use, designation and sale of land, road building and maintenance, plus a raft of other issues. Because they come from an international convention via an EU directive, the EIRs will be unaffected by any amendment to FOI. Indeed, their European origin would make it very difficult for them to be changed substantially, but no such proposal is even close to being on the table.

The detail contained in the Regulations’ definition of information is lifted almost word-for-word from the Aarhus convention signed by the UK government in 1998, and the Aarhus Implementation Guide informed both DEFRA’s guidance on the EIRs and the Commissioner subsequent decision-making. I believe that the ICO’s broad approach to interpreting the definition is correct, but in the light of the broadsides against FOI, it will have an unintended consequence.

All public bodies have buildings, use energy and pump out waste to a greater or lesser extent. So all public bodies will receive requests for environmental information, even if many of them don’t realise it. However, many organisations and some sectors are focussed far more on the regulation, management and protection of places and things than others. The fact that the EIRs do not place a formula-driven cost limit on requests, do not exempt any absolute class of information and allow for verbal requests already means that public authorities with significant environmental responsibilities have to be more open than those that don’t. Anything that slows FOI down increases this gulf. If FOI applicants have to pay a fee, or see the finding / collation time reduced, this will not affect the EIRs.

So why should you care about this? An attack on FOI risks turning the idiosyncrasies of EIR into an accountability gulf. The average district or parish council is almost exclusively concerned with – in the EIR sense – environmental matters, whether it’s planning, licensing, or waste and recycling. A county or unitary council, whose functions do include substantial people-focussed services covered by FOI, nevertheless retains massive environmental responsibilities. Hobble FOI, and while these organisations will remain directly accountable for a good proportion of their functions under EIR, a significant gap will open up between them and other parts of the public sector.

The powerful lobbyists for FOI’s neutering – ACPO, the NHS Confederation and, to a lesser extent, Universities UK– can make their case knowing that many of their core functions are unlikely to be touched by the EIRs. Therefore, a part of the public sector that already has a structural element of direct accountability (the election of local councillors) could end up being more accountable than its local peers (police and local NHS bodies). Those who run police forces, NHS bodies and many agencies and quangos are appointed and not elected; a change to FOI will create a further accountability deficit. Equally, a split will develop between those government departments, agencies and quangos who focus on law and order or health, and those who protect, manage or regulate aspects of the environment, based not on policy or any particular commitment to environmental openness, but because FOI is not untouchable and the EIRs are

The citizen who cares about the rationing of NHS services or the investigation of crimes in their neighbourhood should not be placed at a disadvantage against a neighbour who is more concerned with fly-tipping. The inconsistency between FOI and the EIRs is already a somewhat unwelcome complication. But tampering with FOI at the behest of interest-groups and lobbyists is undemocratic not just because of the generic arguments in favour of openness and transparency, but because it will create two classes of organisations and two classes of applicant. We’re supposed to be all in this together.

 

Tim Turner runs 2040training, blogs at 2040info.blogspot.com and tweets as @tim2040

In defence of FOI, in three parts

Blogger and law student Alistair Sloan has an excellent three-part blog-post series In Defence of FOI, hosted at Avizandum Times:

In Defence of FOI Part 1

In Defence of FOI Part 2

In Defence of FOI Part 3

“Politicians push for new Freedom from Information Act”

Twitter users interested in public sector issues might well know of a purple baby dragon fairy by the name of @puffles2010. Puffles’ best friend blogs on many interesting matters. Here, republished with his kind permission, he writes about the threats to FOI.

Summary – a spoof article followed by a defence of Freedom of Information

NEWZ-SPOOF:

In a new development from Westminster, senior figures within the Whitehall jungle have come out in support of a proposed new “Freedom from Information Act.” Its supporters say that the propose bill due to be introduced to Parliament following the next Queen’s speech is essential to cutting the deficit and helping the Government hit its targets.

Whitehall has estimated the costs of responding to freedom of information requests has topped £1billion per year. At current rates senior unnamed sources have claimed that civil servants will have to stop doing their day jobs of pushing paper and counting paperclips so as to concentrate on responding to requests about what ministers had for lunch yesterday.

Politicians have also claimed that there is widespread support from parents for this new measure. One introduced us to one of his constituents, who said the following:

“My daughter had her heart set on becoming a doctor, and was doing so well at school. But when she found out the true details of what the new higher education funding arrangements were, she became disheartened at the prospect of huge debts that she’s abandoned her career hopes. This has had an appalling impact on her exam results. The Freedom From Information Act would put an end to such damaging information being made accessible to young impressionable minds.”

Transparency campaigners claim that this proposed piece of legislation would stop scandals such as the MPs’ expenses from ever seeing the light of day. But proponents of Freedom From Information disagree.

“Parliament is perfectly capable of dealing with with financial misdemeanours – as was made perfectly clear by longstanding parliamentarians Jim Devine, David Chaytor, Elliot Morley and the noble Lord Hanningfield. It was this transparency nonsense that led to the downfall of many a fine politician. Being a politician is an expensive business – requiring expenses. What politicians choose to spend their expenses on should be a private matter.”

When asked whether he agreed with former MP Anthony Steen that ordinary members of the public were jealous that politicians had big houses, he said he agreed.

We then asked former Cabinet Secretary Lord Appleby about his thoughts on the new proposals.

“Oh they are excellent! What transparency campaigners have never understood is that it takes years and years of dedicated hard work, long hours of training and many a holiday spent on independent study and research to become a top policy official. Things that may not look good in the morning’s papers are often done for very good reasons – but for reasons that are either too complex and too complicated to explain for the world of soundbite journalism, or for which further discussion could prejudice national security. My old chums are terribly excited and are really looking forward to the passage of this piece of legislation – it’ll be just like old times!”

Another unnamed manderin concurred with Lord Appleby.

“How can you go about the complex business of public policy making and trying to formulate how to deliver public services when you are being constantly scrutinised by the public? Their role is to receive public services, not to comment on the service that they receive and certainly not to take part in deciding how they should be delivered! If they started doing that, where would it leave the civil service? There’ll be even more job losses than of the like we’ve seen in recent years. All of those delicate carefully-formulated plans will have gone to waste. And then what? Anarchy! That’s what I tell you! Anarchy!”

Now…all of the above is a spoof – with a wingtip to The Onion from an article I read over 10 years ago while at university.

But the real issue is around post-legislative scrutiny of the Freedom of Information Act 2000. The BBC reported on it here and states that the Ministry of Justice said FoI had made authorities more open but had not improved decision-making. (MoJ’s full submission is here). I disagree – strongly.

The first job I had in the civil service involved helping prepare a regional office for the implementation of the full Act – Whitehall had first notice of a possible Freedom of Information Act when Labour was campaigning for the 1997 election, and would have had more than enough notice both preparing the Bill that became the 2000 Act, and the five years to prepare their records management systems for its implementation.

I’m not going to go into the details of some of the conversations I had with people, or compromise individuals. What I will say is that my observations from those conversations convinced me that the Act – and the push for transparency was, and is a good thing. For a start it encourages civil servants to think whether their decisions can be reasonably justified. In particular it puts a greater focus on the evidence – both what they have and what they need, in order to come to decisions. Transparency has also helped boost people’s understanding of how Whitehall and Westminster function. This means that they are able to ask more targeted and focused questions of those in power. As a junior policy official, this is the sort of stuff that made me want to get out of bed in the morning. Amongst other things it showed that people were taking notice of your policy area because they were asking reasonable questions about it.

There is also the digital and social media aspect of things as well. I described in a recent presentation how several years ago I described the internet as the antithesis of censorship. The development of social media makes this even more so. How to deal with it? Labelling more information as secret/classified is not the way to go about it. The less information that is locked away from prying eyes, the less likely it is to go walkies and end up on some website at the start of a social media firestorm.

Martin Williams at Liberal Conspiracy has written a very useful blog on how the delivery of Freedom of Information can be improved without changing any laws. Number 9 is particularly good. One of the things I did on a number of occasions when dealing with FoI requests was to phone up or contact the requester. This was to have a discussion about the request, to clarify points that were not clear and sometimes to say that either we had more information that we could supply/publish or that other named organisations may hold other information that may be useful for whatever the purpose was of their requests.

Culturally there are a number of people within Whitehall who see Freedom of Information as a threat or as an inconvenience. I saw it as a public service. I still do. I’ve given out (and still give out) advice to individuals and grassroots campaign groups. Last summer I stumbled across one while down in Sussex for PufflesCamp. I gave an ad hoc seminar on a picnic table to a group of campaigners at a climate camp. The local authority woke up on Monday morning with a handful of very painfully targeted freedom of information requests that it then had to deal with. The process of doing all of that I hope helped local people hold their local council to account for its plans on the issue they were concerned about.

If you want to see who submitted what to the Justice Committee in terms of written evidence, have a trawl through this link. Anything interesting crop up?

Originally published on February 17, at adragonsbestfriend.wordpress.com/2012/02/17/politicians-push-for-new-freedom-from-information-act/

Next session of the Justice Committee

As supporters of #saveFOI will know, the parliamentary Justice Committee is currently holding evidence sessions for its post-legislative scrutiny of the Freedom of Information Act 2000. Its next session is on Tuesday 28 February. Evidence will be heard from the following (with links where available to their evidence submissions)

Professor Ian Diamond, Vice-Chancellor of University of Aberdeen, Chair of Research Policy Network, Universities UK (evidence)

Dr Rodney Eastwood, Registrar, Imperial College, (on of the behalf Russell Group ) (evidence)

Professor Trevor J McMillan, Pro-Vice Chancellor for Research, Lancaster University, Chair of the 1994 Group Research and Enterprise Policy Group

Martin Rosenbaum, BBC News (evidence)

Doug Wills, Managing Editor, Evening Standard, i, Independent, Independent on Sunday (evidence)

David Higgerson, Digital Publishing Director, Trinity Mirror Regionals (on behalf of the Newspaper Society) (evidence)

David Hencke, Senior Investigative Journalist for ExaroNEWS (on behalf of the National Union of Journalists)

 

@saveFOI plan to be there again, live-tweeting the session.

http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/foi-ii/

Save FOI petition

The saveFOI petition is now open. Please sign it, and let others know about it,  if you value FOI and want to help persuade those reviewing it that it mustn’t be weakened.

http://epetitions.direct.gov.uk/petitions/29757

 

The Charge of the Rights Brigade

A call to arms by Paul Gibbons

You may have seen flashes of light on the horizon. Or heard the distant sound of gunfire carried on the breeze. Perhaps the smell of cordite in your Twitter feed.

A battle is coming this way and it’s very nearly upon us. If this fight is lost, other armies defending our rights will lose an essential weapon. It’s time to stand up and fight to #saveFOI.

You will, no doubt, have heard that the Justice Committee has begun a post-legislative scrutiny of FOI. And you may have read about some of the more alarmist submissions to the inquiry from some public bodies and sector representatives. The general gist of these is that FOI is an expensive luxury at a time of austerity. That requests should be charged for or that requesters should be able to ask for less. That more exemptions should be introduced. That certain groups should be discouraged from using the legislation.

Some of us fear that the post-legislative scrutiny will be used to legitimise attempts by the Government to weaken FOI. The Coalition has made much of its transparency agenda. We welcome progress made in publishing more data and encouraging re-use. But we fear that it will be used to justify weakening the general right of access under FOI.

The general right of access is important for true transparency. Governments can choose what to publish – they can leave out inconvenient truths. The general right of access under FOI lets you choose what should be disclosed (subject to exemptions, of course). Pro-active publication is great but it is open to accusations of patrician benevolence which can be withdrawn at any time. FOI is truly democratic.

There will always be those who abuse rights. But that can be addressed without penalising everyone. At a time of austerity, when public bodies are making difficult decisions, surely the public needs to be able to properly scrutinise public bodies making decisions that affect them. This is not the time to remove or weaken people’s right to interrogate Government.

A number of us feel strongly enough about this that we have decided to launch a campaign to #saveFOI. Some of us are those who use the Act, but some of us actually work within public authorities but believe that FOI is valuable and beginning to make a positive impact.

So why should you join us in defending the Act? I’m going to list below various groups who I think have every reason to support FOI.

Anyone who campaigns about anything at all – which is an increasing number in these difficult times. Many of you make good use of FOI to inform your work. Recent campaigns against library closures and welfare reforms have all made good use of the Act. Without it your campaigns will be hampered.

Journalists – you make good use of FOI to bring us revelations about public bodies and hold politicians to account. How many times do we read that a story was based on information “released through the Freedom of Information Act” ?

FOI Officers and other public servants. Some of you know that the cost and volume of FOI requests is being exaggerated in some quarters. Some of you acknowledge heavy workloads but realise that that isn’t a reason to remove people’s rights. Many of you can see that FOI is beginning to make an impact, with our organisations slowly becoming more transparent and making processes more efficient and accountable. Many of you will have had to fight to get colleagues or politicians to comply with the Act. Don’t let their negativity win. Even if you have reservations about it, surely self-preservation requires you to support it? Rising FOI requests may mean more work, but that also makes it far less likely that you will be amongst those who are made redundant in these difficult times. You are the turkey and you shouldn’t vote for Christmas.

Businesses. Smaller enterprises are using data disclosed through FOI or as part of the wider transparency agenda. You cannot afford for your right to this data to be weakened. Larger businesses have often used FOI to supplement their knowledge of potential clients. FOI is an asset you benefit from – don’t let it be struck from the books.

Academics? Some of you moan about FOI, some have legitimate concerns about the premature disclosure of research data, but some of you embrace it. You use it in your research, and you could do much more. Do you really want to eliminate a valuable tool?

Politicians and political parties. You’ve all used FOI to hold public authorities, council leaders, NHS Trusts and Ministers to account and to expose scandals. Political parties regularly use it to inform campaigning and electioneering. Do you want FOI to lose its bite?

Critics of the Act. Of course it’s not perfect. To some extent however much was disclosed, it wouldn’t satisfy everyone. But if the existing Act is emasculated, then your fight for more openness becomes that bit harder.

And individuals. You, yes you there reading this on your phone; and madam, your eyes glazing over at the screen; you sir, over there trying to avoid being seen browsing the internet. All of you. You all have a powerful right to interrogate public bodies. It’s simply not true to say that most requests come from journalists – most come from people like you. You might not have used it yet, but you could do. And you never know when you might want to understand how a decision has been reached that affects you. And even if you never use it directly, you are overall much better informed about Government (both central and your local council) through media use of FOI. Do you want to be in the dark again?

So help us to fight the good fight and prevent changes to the FOI Act that will weaken it. You can take the first steps by visiting our campaign blog at savefoi2012 and returning for updates, you can also follow our twitter account @saveFOI. We’ll keep you informed on what you can do to help #saveFOI.

Paul Gibbons is an FOI Officer for a public authority, and blogs at foiman.com You can also find him on twitter under the name @FoIManUK

Save the Freedom of Information Act

In January 2005 the Freedom of Information Act 2000 came into effect. For the first time ever a general right to access information held by public authorities was created. In the years since then it has been used by thousands of people: some of these have been journalists, or campaigners but many have been ordinary members of the public. Many extraordinary stories have emerged. For instance, without the FOI Act, it is very unlikely that the scandal of MPs’ expenses would ever have come out.

Now, in 2012, the FOI Act is being put under what is known as “post-legislative scrutiny”. What this means is that a parliamentary select committee (the Justice Committee) conducts an inquiry into how the Act has worked in practice, and whether any changes are needed. #saveFOI is a campaign set up by a diverse group of individuals who are concerned that this may result in an Act which is weaker and more difficult to use.

There have been great advances in transparency in public life since the FOI Act came into effect: we don’t want to see these reversed.

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