Freedom of Information and rejected honours

The Campaign for Freedom of Information has written to The Times responding to an article by Matthew Parris on the recent disclosure of the names of those who had refused honours under the FoI Act in which he argued that "the advance of Freedom of Information should be reversed...Otherwise FoI could have the reverse effect to what its proposers intended, driving the important information back into the closet."

The letter was published in The Times on 31 January 2011.

Sir, Bewilderingly, Matthew Parris seizes on the disclosure of the names of those refusing honours to call for the Freedom of Information Act to be restricted (‘Back to scrawled notes and secret whispers’, Jan 28). He suggests that Whitehall may now be discussing how to avoid recording this information to prevent such sensitive releases in future. That is most unlikely.

The requester had merely asked for the names of deceased persons who had refused honours, the awards involved and the dates. No information about anyone still living, no correspondence and no internal Whitehall discussions were sought. Where significant research might have been needed to establish if someone had died, the requester proposed that the names should simply be withheld, to avoid the work. The Information Commissioner ruled that refusals within the last ten years should not be disclosed, even though those concerned were deceased.

The FOI principle is that information should be released unless disclosure is harmful. What is the harm here? No living individual’s privacy has been infringed. No civil servant’s advice has been revealed. No time-consuming inquiries have had to be made. No-one thought worthy of an honour will now be denied it and no-one inclined to reject an honour will now feel obliged to accept it.

Maurice Frankel
Director, Campaign for Freedom of Information

Briefing on the future of the FOI Act

2 pm Wednesday 18 January 2012

Campaign for Freedom of Information, 16 Baldwins Gardens, London EC1N 7RJ

The Freedom of Information Act is being reviewed by a parliamentary committee which is likely to recommend changes to the law. This could be an important opportunity to improve the Act. But there will also be significant pressure for new restrictions from public authorities concerned about the cost of dealing with FOI requests or lobbying for new exemptions.

If you would like to contribute to the exercise, it is important to act quickly. The deadline for submitting evidence to the committee is 3 February 2012. The Campaign for Freedom of Information is holding a briefing meeting on January 18 at 2 pm for those who are considering giving evidence.

This ‘post legislative scrutiny’ of the Act is being carried out by Justice select committee of the House of Commons.[1] It has been prompted by the Ministry of Justice which has published a memorandum[2] highlighting specific areas of concern, including:

· Increasing request volumes
· The cost to public authorities and impact on resources
· The difficulty in refusing vexatious requests
· The level of protection given to policy advice and cabinet papers
· The impact on public authorities with commercial functions

The memorandum also:

· Acknowledges delays can occur in conducting public interest tests and carrying out internal reviews
· Discusses the possible extension of the Act to other bodies.

The memorandum says there is “limited evidence” about requesters’ views on the Act. It is therefore important that the select committee hears from requesters and we strongly encourage you to submit evidence about your experiences.

If you would like to attend the Campaign’s briefing meeting on January 18 please rsvp by email to admin@cfoi.demon.co.uk, via Twitter @CampaignFOI or by telephoning the office on 020 7831 7477. We would be grateful if you could circulate details of the meeting to any colleagues or contacts you think may interested.

Notes

[1] http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/foi-announce/
[2] http://www.justice.gov.uk/publications/policy/moj/post-legislative-scrutiny-foi.htm

Course on Scottish Information Commissioner Decisions

The Campaign for Freedom of Information in Scotland is providing a half-day training course on 'Scottish Information Commissioner Decisions' in Glasgow on 20 March 2012 and Aberdeen on 21 March 2012.

The course is aimed at FOI practitioners and those with a good working knowledge of the legislation. It highlights the latest developments in the way the exemptions, public interest test and the legislation's procedural requirements are being interpreted. The course is presented by the Campaign's direction, Maurice Frankel, who has worked in the field for 27 years. It will cover the most significant decisions issued since our last course in February 2011.

While the course will focus on the significant decisions issued by the Scottish Information Commissioner since the last course, it will also cover significant Court of Session rulings and decisions issued by the UK Tribunal that have implications for Scottish public authorities.

The course represents extremely good value for money. The course fee has remained the same since 2006, and significant discounts are available for more than one booking from the same organisation.

No need for more Cabinet secrecy

The Campaign for Freedom of Information has written to The Times responding to comments made by Sir Gus O'Donnell, the outgoing Cabinet Secretary, that the Freedom of Information Act should be amended to provide greater protection for cabinet discussions. In an interview [£], Sir Gus told the newspaper he was a "massive believer in transparency" but "the bit that I'm really against in freedom of information is that bit where it reduces the quality of governance, so I want there to be a safe space."

An edited version [£] of the letter appeared in The Times on 20 December 2011. The full letter is below.

Sir, It is hard to believe that the Freedom of Information Act is the severe threat to cabinet government that Sir Gus O’Donnell, the cabinet secretary, maintains (‘Keep Cabinet secret’, December 17).

If the government thinks that the public interest favours keeping policy discussions or ministerial communications confidential, it can already appeal to a Tribunal against any decision by the Information Commissioner to order disclosure. There are further rights of appeal to an Upper Tribunal, the Court of Appeal and beyond. If arguing the case is too much trouble, ministers can instead simply veto the decision. As Sir Gus acknowledges, this has twice been done to protect cabinet and cabinet committee minutes. Yet he now seeks further protection precisely for such minutes.

The Tribunal’s decisions explicitly give heavy weight to the public interest in protecting collective cabinet responsibility by withholding evidence of ministerial disagreements. They also assume that disclosing options or advice while these are still under discussion is unlikely to be in the public interest.

When Tony Blair prematurely announced, in 2006, midway through a public consultation on nuclear energy that he had already decided the key issue, the Tribunal nevertheless refused to order disclosure of the briefings he had received or the views of ministers, finding that “they were entitled to be treated as confidential” at the time of the request “and probably for a substantial time thereafter”. Officials’ advice was also withhelsd.

Sir Gus presumably wants the Prime Minister to resuscitate the proposal rejected by the last government, to exclude all cabinet and cabinet committee papers - not just minutes - including exchanges between departments, from FOI for 20 years. This would have kept secret interdepartmental discussions on issues like BSE, permitting disclosure only when it was too late to inform debate, provide accountability or learn from mistakes. Key documents on countless other issues would also be secret for two decades, regardless of the public interest in openness or the fact that when requested they might no longer be sensitive.

The last government rejected this proposal. The present should do the same.

Maurice Frankel
Director, Campaign for Freedom of Information

MoJ discloses further details about extension of FOI

Following a FOI request by the Campaign for Freedom of Information (see earlier post), the Ministry of Justice have disclosed further details about the bodies they are consulting on FOI coverage.

In addition to the 25 bodies announced on 7 January 2011, the list includes over 150 'awarding bodies', and over 200 harbour authorities. A list of all the bodies can be downloaded as an Excel spreadsheet here.

The MoJ have also provided a list of the bodies they believe are likely to be brought within the scope of the Act by the amendment to the definition of 'publicly owned company' that is being implemented via the Protection of Freedoms Bill. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. The response to our FOI request stated:

We do not hold a comprehensive list of all bodies which will come within scope of the FOIA through this change. However, we carried out targeted research on a number of local authorities to estimate the number of bodies likely to be affected by this change within local government, and the list I have provided is the result of this research. I should clarify that the information on the list simply reflects the responses provided by the local authorities we contacted (green colour code) or from our own research (pink colour code). We have estimated from this information that the number of bodies that will be brought within scope under the changes to section 6 will be at least 100.

Jointly owned companies identified from the research include Bramcote Crematorium, Gunnersbury Park, Manchester Airport PLC, Gloucestershire Airport, Beacon Local Nature Reserve, Mount Edgcumbe House and Country Park, Farningham Woods Nature Reserve, Shoreham (Brighton City) Airport, Wetley Moor and Connexions Staffordshire as well as a number of shared purchasing and services companies.

The list also contains examples of companies partially owned companies which won't be covered by the changes to section 6. Such companies include Nottingham City Transport of which Nottingham City Council is the majority owner, and the NEC Group which has two shareholders Birmingham City Council and Birmingham Chamber of Commerce, although the Council bears financial responsibility for the Group.

The MoJ also disclosed a copy of the template letter that has been sent to the bodies being consulted and a draft impact assessment on the consultation.

Guidance on private email accounts welcomed

The Campaign for Freedom of Information welcomed today’s guidance from the Information Commissioner confirming that emails dealing with public authority business sent using officials’ private email accounts are subject to the Freedom of Information Act. The guidance points out that the same is true regardless of where information dealing with official business is held. This is because the Act applies not only to information held by a public authority but also to information held by “another person on behalf of the authority”.

The Campaign’s director Maurice Frankel said: “It's been well understood since the Act came into force that officials couldn’t avoid FOI simply by doing their work on their home computers, using private email accounts or keeping official files under their beds. If it was that easy to avoid FOI, Whitehall would have closed down and government business would be carried out from people’s homes. If people have been deliberately using such techniques to claim that no official records exist, they may have been committing an offence under the Act.”

The Information Commissioner’s new guidance says that where private account emails are used for official business because no official channel was available at the time it should be copied to the authority’s email system. It confirms that on occasions officials may be asked to search their private email accounts for messages dealing with official business, if these are needed to answer an FOI request. It also warns that anyone concealing or deleting requested information in order to prevent its disclosure under the Act may be committing an offence.

See also:
Disclosure rule for private emails set to shake Whitehall - FT 15 Dec 2011 (registration required)
Private email accounts are covered by information law - Martin Rosenbaum's blog post
FOI Man's blog post Privacy, email and clean pants

Campaign makes FOI request about Government's plans to extend the FOI Act

During Justice Questions in the House of Commons on 8 November 2011, the Minister was asked about the Government's plans to extend the Freedom of Information Act.

Simon Wright (Norwich South) (LD): What plans he has to increase the scope of the Freedom of Information Act 2000.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): This month we extended the Freedom of Information Act to a further three bodies—the Association of Chief Police Officers, the Financial Ombudsman Service and UCAS. Additionally, we intend to extend the Act to over 100 more organisations through the Protection of Freedoms Bill. We have also begun consultations with more than 200 further bodies about their possible inclusion. Next year we plan to consult 2,000 housing associations and the housing ombudsman.

Simon Wright: I thank the Minister for his response and for the progress made by his Department. As he knows, Network Rail is responsible for spending billions of pounds of public money each year. Will he ensure that that organisation is brought within the scope of the Freedom of Information Act?

Mr Djanogly: The Government are committed to making Network Rail more accountable to its customers, and believe that there is a strong case for its inclusion in the FOI.

The Ministry of Justice (MoJ) news release 'Opening up public bodies to public scrutiny' on 7 January 2011 named some bodies it planned to consult about coverage. But as far as the Campaign for Freedom of Information is aware, the names of "more than 200 further bodies" the minister referred to have not been made public. Neither have the names of the bodies the MoJ has identified as being caught by the extension in the definition of 'publicly owned company' in the Protection of Freedoms Bill. We have therefore made a FOI request to the MoJ for details of these organisations.

The fact that the Housing Ombudsman is being consulted is welcome. The Campaign worked with Lord Wills on an amendment to the Localism Bill which would have brought the Ombudsman under FOI, but the Government did not support it (see earlier post). The Ombudsman and Network Rail were also raised along with other examples of bodies that are candidates for designation by Richard Shepherd MP during a debate on The Freedom of Information (Designation as Public Authorities) Order 2011 (see earlier post).