Category Archives: ICO

The Struggle Continues

Those of us who feel strongly about the value of public sector transparency, and the Freedom of Information Act 2000 (FOIA), might make the mistake of thinking that everyone, incuding our elected representatives, feels the same. However, a Westminster Hall Debate on the 24 January suggests the post-legislative scrutiny of FOIA is not the most pressing of issues in the eyes of MPs: only a handful attended

As the opening speaker, Alan Beith (who also chaired the Justice Committee scrutiny sessions) said, this might have been because another important debate was taking simultaneously taking place in the Commons, on extending the franchise. Nonetheless, as previous experiences have shown, it is important that those of us who care about the subject remain vigilant.

For interesting analyses of the debate I would point you to excellent pieces by Alistair Sloan, and Matt Burgess (Matt did two pieces) on which I gratefully draw. As they show, the key contributor to the debate was by Helen Grant, Parliamentary Under-Secretary of State for Justice, speaking on behalf of the government. As saveFOI and other commentators have expected, and as the Ministry of Justice’s response to the Justice Committee’s report indicated, the government is looking at some potentially illiberal amendments to FOIA.

She spoke of “disproportionate burdens” caused by “industrial users” of the Act

We cannot ignore concerns raised about the burdens it imposes on public authorities, this is especially important in the current challenging and very difficult financial climate and at a time when more Freedom of Information requests than ever before are being received…We will also consider…ways to reduce burdens in a fair and proportionate way, including addressing where one person or a group of peoples use the act to make unrelated requests to the same public authority so frequently that it brings an inappropriate burden.

On one view this is not greatly exceptionable. The issue of vexatious requests, by vexatious requesters, is a problem for defenders of the Act, and the Information Commissioner and Information Tribunal arguably take different approaches to these cases. Forthcoming decisions by the Upper Tribunal may bring some clarity. However, as Matt suggests,  within the category of a “person or a group of peoples [using] the act to make unrelated requests to the same public authority…frequently” could fall journalists, campaigners and local active citizens. Any changes which threaten the ability of these and other groups properly to hold public authorities to account will be vigorously opposed.

Ms Grant also confirmed that the government is looking at reducing the section12 minimum cost limit beyond which requests need not be dealt with, while introducing an effective “thinking time” provision. As Maurice Frankel, of the Campaign for Freedom of Information, told the Telegraph

Any request raising new or challenging issues is bound to require significant thinking time at first and be liable to be refused under these proposals. Authorities should not be protected from having to think about new issues, that’s a recipe for stagnation.

There was also suggestion that the use of the bludgeoning ministerial veto will be reviewed, not to see if it can be used less, but if its use might be extended beyond the “normal” usage relating to cabinet discussions (“there is no limitation in the Freedom of Information Act itself which prevents the veto being used for other information”).

So, despite the supportive words of Alan Beith – long a friend of freedom of information – and some of the few other MPs who turned up, it seems, as Paul Gibbons warned in our last post, that “the Government has decided to take its own course on FOI”.

The Justice Committee Report

The Freedom of Information Act has been a significant enhancement of our democracy

These are the stirring introductory words to the report of the House of Commons’ Justice Committee, produced in their key role in the post-legislative scrutiny of the Freedom of the Information Act 2000. saveFOI – a disparate group of practitioners, experts and activists – was set up because of perceived threats to the effectiveness of the Act from this scrutiny process. Along the way there have been some worrying and some more reassuring rumours. We even felt compelled at one point to write to the Committee because of some concerns we had about the process.

Now the report has been published, and we are – broadly – very pleased with the outcome. The Committee have also lambasted Tony Blair for his failure to co-operate with the process – but we’ll leave it saveFOI co-founder Tim Turner to demolish Mr Blair’s stance.

Here are some of the reasons why we’re pleased:

“Chilling effect”

It is very important to note that, despite strong arguments from loud voices, the Committee was not convinced that the “chilling effect” on government and policy development was supported by much more than bold assertions

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act. On the one hand, the Constitution Unit’s research—the most in-depth available—suggests it has only a marginal effect. On the other hand, a range of distinguished participants who are, or who have been recently, at the heart of the policy-making process attest that it is a problem…Given the uncertainty of the evidence we do not recommend any major diminution of the openness created by the Freedom of Information Act, but, given the clear intention of Parliament in passing the legislation that it should allow a “safe space” for policy formation and Cabinet discussion, we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions.(§200-201)

However, the Committee might have – wittingly – given the green light to further use of the illiberal ministerial veto powers under section 53 of the Act

We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.(§201)

Prospect of charges

Despite worries that the Committee would bow to pressure to call for FOI requesters to pay a small charge to make a request, there is no such recommendation

fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act. (§85)

“Requestor blindness”

Some witnesses had called for charges for certain classes of requestor (for instance the media, or commercial organisations). This too has been rebuffed

The Act operates on the basis of requester blindness. As a result developing a way to charge requesters who commercially benefit from the information they receive from public authorities is difficult, if not impossible. Any requirement that requestors identify themselves could easily be circumvented by requestors using the name of a friend, family member or other person. Attempts to police such a system, either by public authorities or the Information Commissioner, would be expensive and likely to have a limited effect.(§81)

“Frivolous” requests

There had also been suggestions of a new exemption to cover “frivolous” requests, including from the Information Commissioner. The Committee, while not completely rejecting this idea, was not convinced it was necessary

It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law.(§135)

Fees Limits

The Committee does recommend some changes be considered however. It clearly accorded some weight to arguments that the burden on public authorities in complying with complex and voluminous requests was too great. The report suggests that consideration be given to reducing the amount of time an authority need take in searching for and compiling information

complying with its duties under the Act can be a significant cost to a public body. A standard marginal decrease in the 18 hour limit may be justifiable to alleviate the pressure on hard-pressed authorities, particularly in the context of increasing numbers of requests. We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected (§61)

However, the Committee was not of the view that reading and consideration time should also be taken into account

Such activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.(§60)

Pre-publication of research exemption?

A possibly important change is proposed at §202-214 – Universities argued strongly in written and oral evidence that there was insufficient protection for pre-publication research under the existing Act (and that a provision in the Freedom of Information (Scotland) Act 2002 should be mirrored in the FOI Act). The Committee took this on board

We recommend section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland. While the extension of section 22 will not solve all the difficulties experienced by the universities in this area, we believe it is required to ensure parity with other similar jurisdictions, as well as to protect ongoing research, and therefore constitutes a proportionate response to their concerns.

Although there is an argument that sufficient protection exists under the existing statutory scheme, this is not either a particularly unexpected nor unwelcome proposal provided sufficient safeguards are built in to ensure such an exemption is not abused.

Section 77 prosecutions

It is not surprising that the Committee also recommend a change to the provisions of the Act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the Information Commissioner to bring a prosecution within six months of the offence taking place. As often the Commissioner would not find out about an offence until well after this, the chances of bringing a prosecution have been very low – as he himself has pointed out . The report says

The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.(§121)

Statutory time limits for internal review etc

Under the current scheme when an authority wishes – where appropriate – to extend the time to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit. This has been described as an anomaly, and the report rightly calls for it to be corrected

We recommend the 20 day extension be put into statute. A further extension should only be permitted when a third party external to the organisation responding to the request has to be consulted…We recommend that a time limit for internal reviews should be put into statute. The time limit should be 20 days, as at present under the Code of Practice, with a permitted extension of an additional 20 days for exceptionally complex or voluminous requests.(§111-112)

FOI and private contractors

The Committee recognised that the “right to access information must not be undermined by the increased use of private providers in delivering public services” but generally felt that current commercial and contractual arrangements should normally suffice to prevent this

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.(§240)

Disclosure logs and names of requestors

A slightly surprising recommendation is that

where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it.(§82)

As this falls under a heading in the report of “charging media companies”, it appears to be aimed at addressing concerns about use of the Act for commercial or journalistic purposes. However it is phrased in general terms (and is also in the report summary) and authorities would be well-advised not to implement this in advance of any clear statutory or other guidance – it appears to us to run the risk of unfair disclosure of personal data and a potential breach of the Data Protection Act 1998.

Conclusion, and what next?

Mostly good! Some concerns remain, and we’ll continue to read the report and possibly blog in more detail in coming weeks.

It’s clear the Committee have applied themselves admirably to the task (and this was evident from an early stage). What the government, and ultimately Parliament, does next remains to be seen. Possible future battle lines were drawn in an exchange between Jack Straw (yes, yes, we know he’s not in this government, but…) and the Campaign for Freedom of Information’s Maurice Frankel on BBC Radio 4 this morning. Straw’s only real concern appeared to be the lack of recognition of the need for a “safe space” for government and policy-making. Of course, such a safe space already exists (see the discussions on the “chilling effect” and consider the broad exemption and veto powers under sections 35, 36 and 53) but the government may pursue this point.

saveFOI will continue to work to defend the Act, and we recognise that the Justice Committee’s report is only one part (albeit a major one) of the struggle.

Further reading

Many pieces and analyses are already emerging. Here’s a selection

Information Commissioner, Christopher Graham

FOIMan – “Justice for FOI”

Tim Turner – “Revenge of the Nincompoop”

UCL’s Constitution Unit – “No Going Back: Committee Protects FOI”

BBC’s Martin Rosenbaum – “Commons Report praises current FOI system”

and finally

“Campaign welcomes Justice Committee FOI report” from the redoubtable Campaign for Freedom of Information, without whom, as they say, perhaps none of us would be here.

FOI – A New Exemption?

In a talk given to a “Solicitors in Local Government” weekend school the Deputy Information Commissioner Graham Smith was reported to have made some interesting observations relating to the post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA). He was said by UKAuthority.com to have told his audience that

local government’s concerns about freedom of information are not being heard by the Commons Justice Committee as it scrutinises the Freedom of Information Act. ‘There’s no strong voice from local government in this process before the justice committee.’

Perhaps more importantly, he was also said, by the Law Society Gazette, to have warned that

the volume of FoI requests would continue to increase. Ironically, one cause was the government’s transparency agenda: the requirement to publish all items of spending over £500 ‘just puts things out there that cause people to ask questions’, he said. ‘I can’t see that changing.’

‘The clear challenge is that the number of requests is going to go up and up, often building on information that is already in the public domain.’

and perhaps most interesting of all that

the information commissioner would support moves to introduce a specific exemption for frivolous requests

Two observations can or should be made: first, these are second-hand reports of his speech – we are not aware that it has been published anywhere, or that any formal statement has been made by his office on this subject; second, FOIA already has an exemption at section 14(1), which allows public authorities not to comply with a request that is “vexatious” and, if it was correctly reported, it is interesting that Smith’s apparent nod towards a possible new exemption was made the weekend after the Information Tribunal gave a very strong  judgment which criticised the makers of “vexatious requests” and appeared to advocate a broad interpretation of “vexatiousness”

Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests

Whether, ultimately, Parliament decides to enact a new, or amended, exemption for “frivolous requests”, remains to be seen, but it seems that the Information Tribunal (or at least this specific tribunal) is perhaps less convinced of a need for change than the ICO.

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

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