Tuesday, October 31, 2006

ICO ruling on deceased patient’s records

Press release from the ICO:

Epsom and St Helier University Hospitals NHS Trust right to refuse access to patient’s records under FOI

Epsom and St Helier University Hospitals NHS Trust was right to refuse the disclosure of a deceased patient’s records under the Freedom of Information Act, the Information Commissioner has ruled.

The Trust refused the request for information relating to the health records of a deceased individual on the grounds that a duty of confidence was owed to the deceased and that this should survive the person’s death (as covered under Section 41 of the Act). The Commissioner also ruled that some of the requested information was subject to legal professional privilege (as covered under Section 42 of the Act).

The Freedom of Information Act is not intended to allow people to gain access to private, sensitive information about other individuals.


Read the Commissioner’s full decision notice on this case

Friday, October 27, 2006

ARTICLE 19 protests United Nations Development Panel refusal to disclose information

ARTICLE 19 has sent a letter to the UNDP Public Information and Documentation Oversight Panel,protesting against its refusal, in its first ever decision, to provide any of the information requested. The decision effective renders the Policy a dead letter. (ARTICLE 19 is a human rights organisation with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide).

Letter to the UNDP Public Information and Documentation Oversight Panel

The documents relating to this case are available at Alasdair Roberts' website


UNDP policy on Access to Information
Information Tribunal case update

The list of upcoming FOI/EIRs/DPA cases at the Information Tribunal has been updated. Some interesting cases to note: The House of Commons case (MPs' expenses) will be heard on the 7th December). The first MP, Norman Baker to submit an appeal will have a "directions" hearing on the 13th Nov for his appeal about his request to the Cabinet Office.

Also - there is a Data Protection case - "Security Service v The Information Commissioner" listed (with no date) with a message "Appeal stayed until further order of the Tribunal." - does anyone know any details about this? (I'll contact the Tribunal and see what I can find out)
Information Commissioner publishes FOI progress report

The following ICO press release was published yesterday (they are doing better, but still have a long way to go):

Richard Thomas, Information Commissioner, publishes a new report today to document the progress made by his office (ICO) in carrying out its duties under the Freedom of Information Act. The report highlights some of the powerful rulings the Commissioner has made on a wide range of issues including the cost of identity cards, Legionnaires disease, academic standards and salaries of senior officials.


Richard Thomas said: “It is extremely encouraging to see the positive impact the Freedom of Information Act is having on individuals. A great deal of information has been released since the introduction of the Act, which would not otherwise have been in the public domain. I was delighted that the Constitutional Affairs Select Committee concluded that Freedom of information was proving to be a significant success.”

Since the Act came into force the ICO has received over 4400 complaints and closed 72% of these cases. After a challenging first year the ICO has made clear and significant improvements to the way complaints are handled.

Productivity has increased significantly and an average of 245 cases are now closed each month (up from 140 in 2005/6). This is more than are received each month and the number of backlog cases is expected to go down to 450 by the end of the financial year.


The improvements have resulted from a new case reception unit, a complete re-structuring of complaints teams, new procedures, more active case management and the recruitment of extra staff on a temporary basis. However since the additional funding was agreed and temporary staff were recruited to clear the backlog the ICO has received 18% more complaints than were anticipated.

The ICO’s new approach balances the need for intellectual rigour against the operational focus of getting the job done. The challenge remains to apply the new act to a huge range of activities and circumstances, stretching across the entire public sector.

Richard Thomas said: “Our report shows that everyone involved with Freedom of information has been through a massive learning exercise. My staff are often confronted with complex cases and unfamiliar subject matter. We have radically overhauled the way we deal with complaints under the Act and this has resulted in a step change in performance. Alongside increased productivity, I am confident that the quality of our work has improved, notably our communications, investigations and decision notices. The financial assistance, provided to us by the Department for Constitutional Affairs in the spring of 2006, has enabled us to recruit additional temporary staff and speed up our complaints handling process. However, if we are to deal with higher than anticipated demand and maintain acceptable service standards the report signals that additional temporary funding in 2007/08 will be needed to allow us to retain trained temporary staff.”

The report also includes the ICO’s new enforcement strategy which sets out how a tougher approach will be used with recalcitrant public bodies from now on. Many public authorities have learnt from handling Freedom of information requests and have improved their systems for dealing with them. However, where public authorities are regularly or seriously failing to meet expected standards of good practice, the ICO will take appropriate action.


Freedom of information: ICO enforcement strategy (PDF)

Freedom of information: ICO progress report


Also see:
The Guardian - Watchdog asks for extra funds to deal with FoI backlog

Wednesday, October 25, 2006

US FOIA - Judge Orders Cheney Visitor Logs Opened

Taken from Examiner.com
A federal judge has ordered the Bush administration to release information about who visited Vice President Dick Cheney's office and personal residence, an order that could spark a late election-season debate over lobbyists' White House access.

While researching the access lobbyists and others had on the White House, The Washington Post asked in June for two years of White House visitor logs. The Secret Service refused to process the request, which government attorneys called "a fishing expedition into the most sensitive details of the vice presidency."

U.S. District Judge Ricardo M. Urbina said Wednesday that, by the end of next week, the Secret Service must produce the records or at least identity them and justify why they are being withheld.
CIPFA courses

CIPFA have akd me to post details of the following courses:

Information Governance Update 2006
London - 28/11/2006 | Leeds - 30/11/2006 | Edinburgh - 07/12/2006
Further Details
Contact' Charlotte Mean 020 8667 8176

Conducting an Information and Records Audit to ensure Good Governance
Birmingham - 01/12/2006
Further Details
Contact' Charlotte Mean 020 8667 8176
Early Day Motion update

93 MPs have now signed the early day motion
Maurice Frankel article

Maurice Frankel (director of the campaign for FOI) published an opinion article in the Daily Telegraph yesterday "Opinion: Freedom of Information laws are under attack". The article contains some valid examples of how the proposed changes may detrimentally impact upon users of the Act.

Sunday, October 22, 2006

International news

Canada

CTV - Judge strikes down part of Canada's secrecy law
"OTTAWA -- An Ontario court has struck down sections of Canada's secrecy law in throwing out RCMP warrants used to search a reporter's home. The Ontario Superior Court judgment quashes three sections of the so-called leakage provisions of the Security of Information Act, passed following the 9-11 terrorist attacks on the United States."

USA


FAS Project on Government Secrecy
- ATTORNEY GENERAL REPORTS ON FOIA
"Executive Branch agencies have implemented President Bush's December 2005 executive order 13392 on improving the processing of Freedom of Information Act requests "in a vigorous manner fully commensurate with the importance of this unprecedented Presidential initiative," according to an enthusiastic new report to the President from the Attorney General."


National Security Archive Update
- Attorney General's Report Ignores Serious Problems in Agency FOIA Programs
Media update

Coverage of FOI costs/fees regs story

Daily Telegraph
- Freedom of information curbed 'to spare red faces'
"Fear of more embarrassing disclosures about Government ministers are behind Labour's plan to rein back Freedom of Information legislation, it was claimed last night. The allegation came as officials named the top QC who has been hired to prevent information being released about the £5.4 billion ID card programme."


The Guardian -letters - Restrictions on freedom on information

Independent - Ministers water down Freedom of Information Act

Politics .co.uk - FOI changes 'could reduce scrutiny'

Other stories

The Mirror - THE SCAR ON OUR SCHOOLS
"THE knife culture in British schools has reached a terrifying level, a Daily Mirror probe can today reveal....During the first 20 school days of September, 83 serious incidents were reported in secondary schools and 28 in primaries..our shock findings, uncovered under the Freedom Of Information Act, will further alarm parents worried about school safety in the wake of recent tragedies."

Cambridge Evening News
- Full-time cleaner is axed at 'filthy' pool
"A SWIMMING pool branded "disgusting" after a £300,000 refurbishment has been criticised for not having a full-time cleaner....Paul Burns, the man behind consumer website Leisure Connection Watch, has used the Freedom of Information Act to force Paradise Pool into finding out how the pool is cleaned. He found the centre has dispensed with a 20-hours-a-week cleaner and now asks the pool's lifeguards to do the cleaning."


Newswire today
- Let’s Look at the 'Scores On the Doors' – Salford Puts Food Safety Results
"Salford City Council’s Environmental Health service has become the first UK local authority body to publish fully accessible details of all its food hygiene site inspections, using the new Authority Public Protection web toolkit from Civica plc, one of the UK’s most experienced providers of consulting, software and services for the public sector."

IC South London - 'Gambling risk from dome'
"A SUPERCASINO at the dome would increase the risk of residents becoming gambling addicts, according to a report commissioned by Greenwich council. Greenwich council has been widely slated for not publishing the report, prepared for "exclusive use". It has now been released following requests under the Freedom of Information Act."

Belfast Telegraph - Airport defends Ryanair deal secrecy
"City of Derry airport manager Seamus Devine has claimed to a tribunal that disclosure of Derry City Council's arrangements with Ryanair could have major implications for the airport's future. The tribunal was set up after Derry City Council lodged an appeal against an order by the Information Commissioner to release the information, requested by the Belfast Telegraph under the Freedom of Information Act."

Sheffield today - Tourists cost Sheffield hospitals almost £300,000 claim
"Figures reported in a national newspaper today claim to show that Sheffield Teaching Hospitals NHS Trust has outstanding debts totalling £296,586 from foreign patients not entitled to treatment on the NHS. The Trust, which runs the Royal Hallamshire, Northern General, Weston Park, Jessop Wing and Charles Clifford Dental hospitals, has been named as the tenth worst hospitals trust in the UK for unpaid bills for NHS treatment for overseas visitors from 2005. Overall health tourism is costing the NHS £9 million in unpaid bills, the newspaper claims. It gathered the figures under the Freedom of Information Act."

This is London - Brown 'has raided £100 billion from pension funds'
"The Treasury has fought requests under the Freedom of Information Act for the amount that the Chancellor expected to get from the raid to be revealed."

Observer -Loans plan to tackle scandal of Britain's empty homes
"If a council won't disclose information on its empty properties, a written request can be made under the Freedom of Information Act. There are also websites that can help, although these tend to concentrate on specific areas. Empro.co.uk, launched in 2004 by the Empty Homes Agency, the government and seven west London councils, provides details of empty homes in west London and has recently begun to list properties in the Midlands too."

Boston Today
- Council admits breaching Freedom of Information Act
"THE county council has admitted breaching the Freedom of Information Act by not answering a Boston pressure group's requests for figures about the town's Transport Study."

MK news - Council reveals consultants’ cost
"The social services department has spent £105,480 on consultants to review its eligibility criteria for the elderly and vulnerable, we can reveal."

The Guardian - BBC reveals increase in party donors nominated for peerages
"The latest figures were disclosed under freedom of information legislation by the Lords Appointments Commission, which vets nominations. In the 27 months between July 2003 and October 2005, the two parties nominated eight donors to become members of the House of Lords. In the nine months between October 2005 and July this year, they nominated 11 donors."

Sunday Times - Academies are failing on GCSE results
"HALF of the first wave of Tony Blair’s flagship academies are failing their pupils, according to internal reports released under freedom of information laws. "

Friday, October 20, 2006

Treasury aims to keep Gateway closed

From Kablenet.com:
"The government has hired legal experts in an effort to block publication of Gateway reviews of the National Identity Card programme. Legal representation will come from the Treasury's Solicitors department, which has had approval to bring in external legal experts and a Queen's Counsel to fight a decision by the information commissioner, Richard Thomas, that two Gateway Reviews on ID cards can be published. The use of legal experts is expected to cost between £20,000 and £50,000."

Read the original ICO decision
Fire Safety reports

Heather Brooke reports that the "prohibition on disclosure that blocked the release of fire inspection reports (section 21 of the Fire Precautions Act 1971) was repealed by the new Fire Safety law that came into force 1 October 2006". London Fire and Emergency Authority are now re-processing her request and they seem willing to release the data.
Latest Tribunal decision

Mr C M Hogan and Oxford City Council v Information Commissioner (17 October
2006)(PDF 785KB). The ICs decision notices were upheld by the Tribunal. The Tribunal found that Oxford had applied S31 correctly in relation to Vehicle Identification Numbers (VINs) but not in relation to the Vehicle Registration Marks (VRMs).
ICO Decision notice roundup

October 2006

Case Ref: FER0086096
Date: 02/10/2006
Public Authority: Port of London Authority
Section of Act/EIR & Finding: EIR 5 - Complaint Upheld
View PDF of Decision Notice FER0086096

Case Ref: FS50066289
Date: 04/10/2006
Public Authority: Gateshead Council
Section of Act/EIR & Finding: FOI 38 - Complaint Not upheld , FOI 42 - Complaint Not upheld , FOI 40 - Complaint Not upheld
View PDF of Decision Notice FS50066289

Case Ref: FS50071454
Date: 02/10/2006
Public Authority: City and County of Swansea
Section of Act/EIR & Finding: FOI 40 - Complaint Not upheld
View PDF of Decision Notice FS50071454

Case Ref: FS50073130
Date: 09/10/2006
Public Authority: Devon and Cornwall Constabularly
Section of Act/EIR & Finding: FOI 30 - Complaint Not upheld , FOI 40 - Complaint Not upheld
View PDF of Decision Notice FS50073130

Case Ref: FS50081576
Date: 05/10/2006
Public Authority: Department of Culture Arts and Leisure
Section of Act/EIR & Finding: FOI 27 - Complaint Upheld , FOI 36 - Complaint Upheld , FOI 41 - Complaint Upheld , FOI 40 - Complaint Upheld , FOI 17 - Complaint Upheld
View PDF of Decision Notice FS50081576

Case Ref: FS50086317
Date: 05/10/2006
Public Authority: HM Treasury
Section of Act/EIR & Finding: FOI 40 - Complaint Not upheld , FOI 21 - Complaint Not upheld
View PDF of Decision Notice FS50086317

Case Ref: FS50090750
Date: 03/10/2006
Public Authority: Chief Constable Northumbria Police
Section of Act/EIR & Finding: FOI 40 - Complaint Not upheld
View PDF of Decision Notice FS50090750

Case Ref: FS50128761
Date: 10/10/2006
Public Authority: Information Commissioner
Section of Act/EIR & Finding: FOI 40 - Complaint Not upheld , FOI 41 - Complaint Not upheld
View PDF of Decision Notice FS50128761

Case Ref: FS50132936
Date: 05/10/2006
Public Authority: Office of Government Commerce
Section of Act/EIR & Finding: FOI 33 - Complaint Upheld , FOI 35 - Complaint Upheld
View PDF of Decision Notice FS50132936
Jack Straw@s comment on MPs expenses and FOI

Jack Straw (The Leader of the House) answered a question at the Downing St Press Coneference yesterday about non disclosure under FOI of full details of MPs expenses:

Afternoon press briefing for 19 October 2006
Freedom of InformationAsked why attempts to obtain full disclosure of MPs' expenses had been blocked, Mr Straw said that was for the same reason as the BBC, as another public authority, resisted a number of FOI requests in respect of the Corporation. The Act's structure fully entitled public authorities to do so, where it was reasonable to claim an exemption. The whole point of the Act was that it was balanced, providing the right to information and providing rights to a public authority to exemptions to it. Asked why it was "reasonable" in this case, the Leader said a great deal of information was now published in respect of the amounts that MPs were paid. There was a point beyond which it came, in the judgement of the House of Commission, within the exemptions. The questioner pointed out the contrast with the Scottish Parliament, the US and other countries. Mr Straw said it was a matter for the Scottish Parliament to make its own decisions.

It was suggested to the Leader that, when the Scottish parliament had published the information, there had been a huge drop in the level of travel expenses. He was asked if he was confident that no MPs were "basically fiddling the system." Mr Straw said there was now substantial disclosure of the totals of individual MP's travel costs. Before the introduction of the FOI, no information had been released about the amounts claimed by MPs, including the allowances for running their offices, staff and travel costs. In addition, there were substantial arrangements in place to ensure that MPs did observe the rules, including a new upgraded arrangement which involved computer proof of the use of travel funds and the provision of a certificate at the end of each month.


Back ground: Campaigner criticises Speaker over secrecy and the ICO decisions listed that the HoC are appealing to the tribunal

Thursday, October 19, 2006

al-jazeera memo - US FOIA request

My request for the al-Jazeera memo to the US Dept State rolls on, my appeal has now reached the Appeals Review Panel of the Dept, hopefully I will hear something soon.

(read the background about my US request)
Information auditing training course

The training course on Information Auditing I'm running next week in Manchester still has some places available. More details and how to book. Places are now half price (£124 plus VAT).

Actnow's annual FOI conference is now taking bookings as well. (13th December)

Wednesday, October 18, 2006

International update

Canada - Secret computer server keeping cabinet documents

Canada - Claim that releasing PMs schedule is security risk



Norway warns on energy transparency



India - Protests, Arrests at Info Act Anniversary Conference
USA: fedspending.org

The new fedspending.org site is a highly impressive new prototype developed in the US by pressure group OMBwatch and will act as a precursor to the recently passedFederal Funding Accountability and Transparency Act that I featured on the blog a few weeks ago:

The search tool gathers federal contract data from the Federal Procurement Data System and information on federal assistance such as grants, direct payments and loans from the Federal Assistance Award Data System. It resembles a system required under the Federal Funding Accountability and Transparency Act. That measure, which President Bush signed into law last week, drew bipartisan support fueled by the backing of an army of bloggers.

The system was developed over six months for less than $100,000, according to the group, and is intended to function as a benchmark for the newly mandated government system, as well as a public resource. The government system is slated to receive $9 million in its first two years and $2 million annually thereafter for maintenance, and is subject to requirements for how data must be presented that could make it harder to implement.


Some examples of the way the data is presented include:

-Top 100 Recipients of Federal Contract Awards for FY 2005

Very much from the Mysociety approach in taking public data and presenting it in a clear user friendly format. Perhaps a feature project for Mysociety here in the UK? I can't think of any comparable datasets available here.
Records Manager Jobs

Some blog readers may be interested in the this RM post currently being advertised.
FOI Podcast

Solicitor Ibrahim has published his first monthly podcast in a series about FOI, the first being a discussion of important tribunal and ICO decisions, it was also featured in The Times this week.
New research published - FOIA 2000: The First Year The experience of local authorities in England


The UCL Constitution Unit have published their study of local authorities during covering 2005:

Download the full report (MS Word)

Download Sarah Holsen's presentation about the research to London Connects FOI forum (MS PowerPoint)

Key findings:

-estimate that in the twelve month period from January to December 2005, the 387 local authorities handled a total of 60,361 requests

-top three categories of applicants were:
Private individuals 43%
Businesses 29%
Journalists 11%

Spend on compliance


Total number of

requests

Average

hours per

request

Total

hours

Cost @

£25/hour

(£000s)

District councils

21,960

16.8

368,928

£9,223

Other council types

38,401

16.2

622,096

£15,552

Total across all authorities

60,361


991,024

£24,775

Note: The compliance costs relate to the twelve month period from January to December 2005.



-Types of information requested: Respondents were asked to rank eight types of information requested, of which the top four categories were:
Costs and expenses 24%
Active local issues 21%
Contracts 20%
Procedures, policy decisions and meeting minutes 16%

-66% of authorities charged no fees to applicants, and a further 33% charged in 5% or fewer cases. Asked whether the authority’s policy on charging for FOI requests was published on its website, 69% reported that the policy was published and 31% reported that it was not.

-Problems with compliance: Respondents were asked to rank six compliance problem areas, which are ranked as shown below:
Applying exemptions 27%
Inadequate resources 24%
Balancing the public interest 18%
Requests which may affect a third party 17%
Requests which could be subject to EIRs 9%
Other 5%

Positive aspects of compliance: Respondents were asked to rank six ways in which they thought that FOI had positively affected their organisation, which are ranked as shown below:
Culture of more openness 29%
Improved records management 28%
Improved internal communication 16%
Improved public trust and confidence 12%
New information about delivery of services 12%
Other 3%

Tuesday, October 17, 2006

New blog - adventures in records management

This new blog may be of interest to those readers working closely with RM

http://www.adventuresinrecordsmanagement.blogspot.com/
Fees - the "independent" report

Just who are "Frontier Economics" who got the contract for the £75,000 "independent" study into FOI, well according to their website:
Frontier Economics was founded in 1999 by a team of highly experienced consulting economists. Our objective is to provide the highest standards in strategic, regulatory and competition policy advice for business and public policy-makers


.....the Guardian today reports that one of their directors is Lord Turnbull, the former cabinet secretary.

The brief they were given was very narrow (See page 4 of report)and is hardly an open minded report in what it presents - the DCA approach has been very much "find us some evidence to support what we want to do" rather than indepedently research then suggest the options based on the evidence. Should the value of the FOIA be considered in such narrow terms based on pure economics?

A few questions

- where and when was this consultancy advertised and other organisations given the opportunity to bid?

- Why spend £75,000 on a report, but fund no other form of public consultation? (as as been ongoing in Scotland)

- Harriet Harman was asked a PQ about costs of FOI (See written answers: 25th July 2006):

Oliver Heald (North East Hertfordshire, Conservative) Hansard source

To ask the Minister of State, Department for Constitutional Affairs what the average cost has been of answering (a) a Freedom of Information request and (b) a request under the Environmental Information Regulations.

Harriet Harman (Minister of State, Department for Constitutional Affairs) Hansard source

Over 100,000 public authorities are subject to the Freedom of Information Act 2000 (FOI) and the Environmental Information Regulations (EIR). We do not have the average cost of answering FOI or EIR requests across all these authorities.


-Was the frontier contract known about at this time? - if yes, the fact that this work was underway should have been acknowledged.

On the Frontier report - I'm still digesting all 75 pages in more detail and plan to make a more considered posting about fees later this week.

Monday, October 16, 2006

More on the Fees story....

Constitutional Affairs Committee: Chairman Alan Beith comments on Government response to Committee report into FOI:

The Committee welcomes the fact that the Government says it does not intend to introduce a flat fee for all FOI requests. However we do not support the changes which the Government is minded to introduce.

These would allow public authorities to include reading, consideration and consultation time in calculating the appropriate limit above which requests could be refused on cost grounds. This is a measure which is open to abuse by authorities. Authorities would have the discretion to decide how long they needed to consider whether to release information and we are concerned that requesters could be denied access to information whenever authorities considered it would take them too long to provide it. In the same way, if public authorities were permitted to aggregate requests made by any one requester for the purposes of calculating these limits, it could arbitrarily exclude otherwise legitimate requests, just because the requester was seeking other information from that authority at the same time.

These changes, if implemented, would fly in the face of the Government's stated desire of encouraging an open culture and have the potential to block important requests where it would be in the public interest to disclose information. I reiterate the Committee's opinion that we see no need to change the FOI Fees Regulations.

We will be reviewing in more detail the other issues covered in the Government's Response.


The fees issue was also raised under business of the house on the 12th Oct by MP Richard Shepherd

The Campaign for FOI has also published this press release, further to the one issued last week in the EDM

The Conservative Party have published a statement on their website:
"Oliver Heald, the Shadow Secretary of State for Constitutional Affairs, declared: "I fear that the Government may be attempting to close down public scrutiny by curtailing the public's right to know with this more restrictive regime. The introduction of the Freedom of Information Act has clearly become too embarrassing for this disaster-prone Labour Government."

The Conservatives are rather strong on words less on clear policies on this area - they have never really made any clear statements about any improvements they would make to the Act. A few weeks ago I wrote to the Conservatives after David Cameron's comments recently about their aims to restore trust and openess - I've asked about the the role they see FOI playing in this agenda and whether it will be examined by Ken Clarke's democracy taskforce and whether concrete policy on FOI/Open Govt will be developed - so far I've not heard anything.

I too had been wondering like Martin over at Open Secrets about what Gordon Brown's approach or interest in FOI might be. Some googling could only find this speech from 1992 that he made on the topic.
Govt reponse to Select Committee report, independent study into FOI released and change to fees regime expected

Just a quick post for now, more comment to follow. The DCA today have published the following reports:

Report of the Constitutional Affairs Committee: Freedom of Information - one year on
Government Response - [PDF 246kb, 19 pages]

The Secretary of State for Constitutional Affairs commissioned an independent review, costing £75,000, to look at the impact of the Freedom of Information Act:

Report of the Independent Review of the impact of the Freedom of Information Act [PDF 525kb, 74 pages]

One of the key headlines is their comment on changes to the fees regime:
Following the conclusions of the review the Government is minded to:
i.
include reading time, consideration time and consultation time in the calculation of the appropriate limit (£600) above which requests could be refused on cost grounds; and
ii.
aggregate requests made by any legal person, (or persons apparently acting in
concert, to each public authority (e.g. Government Department) for the purposes of
calculating the appropriate limit.


The fees EDM I've reported on was obviously put out ahead of this annoucement which certain parties knew was coming.

Friday, October 13, 2006

Information Tribunal finds ICO decision was "wrong in law" in upholding Nottingham City Council's Refusal notice

This decision was published on the 28th Sept, but was only published this week....one of those decisions you read and think ouch!...... It is another important decision that everuyone should read and does again expose some problems at with the ICO's approach to investigating and serves as a "what happens when things go really wrong with an FOI request" example from a public authroity perspective.

The finding was:
The Tribunal finds that the Information Commissioner (IC) was wrong in law in upholding Nottingham City Council's Refusal notice becuase the decision notice was based in a finding of fact which the IC accepts is not correct and that the decision notice cannot stand.


A new decision has been substitued requiring the release of documents. This is also the first case were the public authority (The Council) has been ordered to pay the litigants costs (allowed under the Tribunal Regs). The Tribunal has also recommended the Commissioner issue a practice recommedation (under S48 of the FOIA). The lack of practice notices issues by the ICO is someting I've flagged up before and metioned in my evidence to the Select Committe inquiry into FOI, an FOI request that I made to the ICO last year showed that at that time (Nov 2005) none had been issued and I'm not aware of any being issued since.

At 27 pages this is a long decision but is important reading for practitioners seeking to underdstand how the issue of "no information held" responses need to be carefully managed, reponses stating information is held by another body (in this case a school) must be proved to be correct, as in this case information was held but its existence was not communcicated the applicant. The whole process does appear to have been very convoluted and drawn out partly due to the Council's interaction with the Tribunal proccess and is hardly good PR for the Councils approach to FOI. To quote -
The Tribunal is dismayed at the way the request has been handled and the conduct of the Council since the commencement of this appeal. The Council appears to have mislead Dr Bowbrick and then the IC during his investigation.


Due to the nature of new information coming to light during the tribunal process the decision makes an important ruling on whether exemptions can be claimed before the tribunal for the first time (para 53) - it considered it must consider any exemption claimed even if arising for the first time.

Read the full Tribunal Decision
Statewatch's Observatory on EU Freedom of Information - Case Law

Statewatch have produced this really useful page pulling together an overview of case law on acess to information at EU level (something I struggle to keep up with), compiled by Steve Peers, Professor of Law, Human Rights Centre, University of Essex. If you're new to FOI and the EU they also provide a good introduction on how to obtain or apply for documents from EU institutions using Regulation (1049/2001) on access to documents, I've never made any requests myself.
Your Right to Know - a terrorist threat?


Interesting post from Heather at YRTK, tells the story of a journalist, arrested at a protest at Nottingham airpory and had all his books taken away by Police, including Heather's book "Your Right to Know".
International Tribunal Makes Landmark Ruling on Access to Information

Press release from the Justice initiative:

New York, October 12, 2006—The Inter-American Court of Human Rights broke new ground in declaring that all people have a general right of access to government-held information, the Open Society Justice Initiative said today.

The Court's pioneering ruling in the case Marcel Claude Reyes and Others v. Chile marks the first time an international tribunal has confirmed the existence of a full right of access to information held by government and other public bodies. In Reyes, the Court was interpreting Article 13 of the American Convention on Human Rights, as it applied to government denial of requests for information.

"This is an historic judgment," said James A. Goldston, executive director of the Justice Initiative. "The court has made it clear that access to information is essential to democratic participation and freedom of expression."

The Justice Initiative joined with four other groups in filing a "friend of the court" brief in support of Claude Reyes, who filed a request with the Chilean government in 1998, seeking information on a massive logging project. (The brief is available online)

In its decision, released yesterday, the Inter-American Court of Human Rights referred specifically to a new Justice Initiative publication, Transparency & Silence , which compares freedom of information laws and practices in 14 countries, including Chile.

In the ruling, the court also established that countries must train public officials on procedures for releasing information and that they must be guided by the principle of "maximum disclosure," meaning that, with few exceptions, all government-held information must be made accessible.

"This ruling is about more than just one case in one country," said Darian Pavli, the Justice Initiative's legal officer for freedom of information and expression. "It establishes a precedent that other courts and other countries should now follow."
Campaign for FOI - fees EDM

The Campaign for FOI has produced a special page on the Early Day Motion at the House of Commons, quite a few MPs have signed already (36). The Campaign has also written a useful briefing note explaining the background and possible impact of proposed impact of charges. My call for bloggers to spread the news about this has resulted in some increases interest - do keep the pressure going in spreading the word.
State Secrets: Behind the Scenes of the 20th Century

This is new book, State Secrets: Behind the Scenes of the 20th Century (Hardcover)
by Chris Pomery, published by the National Archives may of interest:

Synopsis
There is something very rewarding about stumbling on a secret - and even better if it reveals the cunning, humanity or plain eccentricity of those in power. Here the "National Archives" takes a glimpse behind the scenes of the twentieth century, presenting 80 stories of the 'news behind the news' on subjects from world war to political scandal to the royal teabags. This thought-provoking collection paints a rich portrait of the British ntional character as ti responded to a turbulent century, recalling some familiar institutions like Dad's Army and James Bond shedding new light on events we all think we remember.


Order from Amazon £6.39

Wednesday, October 11, 2006

Parliament: Early Day Motion (EDM) on FOI and Fees

The following EDM was submitted yesterday, Tory and Liberal Democrat shadow Attorneys General Dominic Grieve and Simon Hughes have both supported it.

Text of the EDM:

That this House welcomes the finding of the Constitutional Affairs Committee (HC991) that the Freedom of Information Act has `already brought about the release of significant new information and....this information is being used in a constructive and positive way' and the committee's conclusion that it sees `no need to change' the Act's charging arrangements; views with concern reports that the Government is considering changing these arrangements to permit an application fee to be charged for all requests or to allow authorities to refuse, on cost grounds, a significant proportion of requests which they currently must answer; and considers that such changes could undermine the Act's benefits of increased openness, accountability and trust in the work of public authorities.


Contact and lobby your MP and get them to sign EDM 2699. Find your MP and contact them using http://www.writetothem.com/ . Post your responses as a comment on the blog.

Message to other bloggers: please link to this post to get help publicise the need to to lobby MPs to sign the EDM

A similar EDM back in 2004 did seem to have some effect when a harsher fees regime was mooted. Over 180 MPs signed. This blog ran a downloadable letter to send. See the Campaign for FOI site for more details of who signed in 2004.

My previous posting on the proposed fees regime

Read more at the Press Gazette
Freedom of Information statistics April to June 2006

The DCA have published the latest statistics for Depts of State and "other monitored bodies". The stats show little change in volumes and performance and show a steady state. The way the figures had not been more explicit in terms of highlighting requests being extended beyond the 20 working day limit has been critcised in the past: table seven now sets out separately the details of requests subject to a "permitted extension". Requests subject to the permitted extension are catgeorised as "in time" in the stats in table B. Across all monitored bodies, there were 1,281 requests (7 per cent of the total received) which were subject to permitted deadline extensions during the first two quarters of 2006 (676 during Q1, 605 during Q2). (full data is available for 913 of these 1,281 requests). In 2005 3587 requests were given a "permitted extension" - the figures for 2006 show no projected increase or decrease for 2006. I presume that this extra data has been added partly in response to the CA Select Committee's comments earlier this year on these issues. Also, as Alasdair Roberts has pointed out in the past there is a need to try match the data from requests given the extended deadline to data relating to their treatment in the clearing house, if they have been passed there.


Executive summary
Departments of State reported receiving just under 4,300 “non-routine” information requests during the second quarter of 2006 (Q2). Other monitored bodies received just under 3,700 requests. This totals include 139 requests handled under the Environmental Information Regulations (EIRs).

During Q2 of 2006, 92 per cent of all monitored bodies’ requests (excluding those “on hold” or lapsed) were “in time”, in that they were processed within the statutory deadline or were subject to a permitted deadline extension.

Of all “resolvable” requests received during Q2 of 2006, 61 per cent were granted in full. Of the remaining requests, 11 per cent of the total were withheld in part, 17 per cent were withheld in full, and the remaining 7 per cent had not yet received a substantive response.

In the first and second quarters of 2006, monitored bodies had a cumulative total of 541 requests referred for Internal Review. Of the 342 Internal Reviews with a known outcome at the time of monitoring, 75 per cent resulted in the request’s initial handling being upheld in full.

Tuesday, October 10, 2006

al-Jazeera memo

The Pre-Trial hearing of the Keogh and O'Connor, charged under the Official Secrets Act of passing information relating the conversation between Bush and Blair that reported discussed the al-Jazeera. There has been some confusion of what took place in Monday as we had assumed this was the full trial starting - the trial will now apparently start on the 18th April. (see The Guardian)

In his published ruling, Old Bailey judge Mr Justice Aikens accepted the government's case that disclosing the contents of the memo would have a "detrimental impact" on "diplomatic and political relations" between the UK and the US. This in turn would have "serious consequences" for "the national safety or national security of the United Kingdom in the current international situation


My FOI request for the memo: my complaint reached the ICO a few months ago, but I have not yet had a case worker assigned. I also have a request under internal review at the US State Dept (they claim they don't hold any records). Staff at al-jazeera first picked up on my request on their "don't bomb" blog.

The Official Secrets Act states: S11(4) Section 8(4) of the [1920 c. 75.] "Official Secrets Act 1920 (exclusion of public from hearing on grounds of national safety) shall have effect as if references to offences under that Act included references to offences under any provision of this Act other than section 8(1), (4) or (5).". A certficate would have to be issued giving reasons.

Similar applications were made by the Government for parts of the David Shayler trial under the Official Secrets Act to be held in camera. (Two were issued one in 2000, the other in 2002). The context was obviously different given Shayler's background as an ex agent - there was a much greater risk of new senstive information coming to light given his extensive inside knowledge and nature of the witnesses involved. Shayler attempted to resist this, as did the press. In this case the detailed evidence supporting the certficate was seen as too damaging, so this was given to the court as a "sensitive schedule". The certficates were accepted by the judge for parts of the trial.

The Guardian carries a comment from Mark Stephens, the lawyer acting on on behalf of al-Jazeera, persuing their FOI request for the memo (similar to mine). It is likely that as with the Iraq/legal advice these similar complaints will dealt with as one cluster by the ICO.

SeeBBC coverage

Also see: Blairwatch

Friday, October 06, 2006

Blog-islation

Blog-islation???? not a term I've come accross before.....in the US blogging is starting to gain coverage as being a real channel of influence in the legislative process, as this report on Govexec illustrates: bloggers were behind push to get the Federal Funding Accountability and Transparency Act (which aimed to"create a Google-like search engine and database" that tracks $1 trillion in federal spending on contracts) on the statute book at stage when it had "stalled".

Is blogging starting to have this sort of influence in the UK? is the influence of the blogging in the US overhyped? In the UK, Ian Dale's recent top 100 politcial blogs has certainly highlighted the increased scope and range of active politcial blogs has increased dramatically. This article (April 2006) from the Guardian shows that the influence of blogs into the mainstream still has someway to go in the UK :"Media coverage of blogging has led to increased awareness of the phenomenon among internet users, but this has not yet translated into more people writing or regularly reading blogs, according to new research.". In the UK the blogging community have been actively campaigning about the Legislative and Regulatory Reform Bill in the Save Paraliament campaign, which got little maintsteam media coverage but the Government have offered some concessions on and it is hard to say if bloggers were an important influence.

On the subject areas this blog covers I hope the blogging community will really get behind any blog based campaign if a new, more restrictive freedom of information act fees regime is formally announced soon - warch this space!.......
Scotland: MSPs’ expenses fall by 87.5%

Taken from the Herald, this is one of the first real tangible examples of FOI having a clear impact on relation to the spending of public money once opened up to public scrutiny. (it will be interesting to track these figures over a longer period to see if they start creeping back up again and as the article acknowledges other factors mnay have impacted on the reduction).


MSPs appear to have slashed their expense claims in the wake of freedom of information and greater public scrutiny of their spending.

New quarterly figures issued yesterday by the Scottish Parliament showed a steep decline in allowance claims through last year, at a time when former Tory leader David McLetchie was being hounded over.

Thursday, October 05, 2006

Food Standards Agency - Have your say on openness

The Food Standards Agency is reviewing its policy relating to transparency and Openess - the deadline for comment is 30th October 2006

Further details


Also see the FSA disclosure log for the types of FOI/EIR releases made by the agency since 2005.
UNDP: Canadian academic seeks information on UNDP projects

From Prof Alasdair Roberts' website:

Professor Amir Attaran of the University of Ottawa has asked the United Nations Development Programme to provide information about projects in Afghanistan that are supported by Canadian government funds. The request was made under the UNDP's Information Disclosure Policy.

Adopted in 1997, the UNDP's disclosure policy has never worked well. The policy is supposed to be enforced by an internal Oversight Panel, but it appears that the Panel has never issued a decision. The Oversight Panel has yet to release a decision on an appeal made by Professor Alasdair Roberts in August 2004.

The UNDP encourages national governments to recognize the right to information. In April 2006, the UNDP's Democratic Governance Group said that the UNDP's credibility on openness was undermined by its inability to comply with its own disclosure policy.

Wednesday, October 04, 2006

Public Services Awards 2006 - no awards for FOI, transparency & openess

FOI and Access to Information still has quite a way to go in reaching the public service agenda as a core issue - it is disappointing to note that the forthcoming Public Services Awards feature no awards relating to freedom of information, transparency or open government. One of the problems with FOI at the moment is that many of headlines often focus on the negative issues such as witholding of information, little praise is given given to organisations who are making efforts to bring new information into the public domain.

Perhaps there is a need to revive the Freedom of Infornmation awards? (last given in 2001)..post your thoughts below....
New disclosure logs

The index page has been updated with the following new logs:

-Guildford Borough Council

-Middlesborough Council

-Suffolk Coastal District Council

-Milton Keynes General

-North Tees PCT

-Rotherham Metropolitan Borough Council

-Audit Scotland

Do keep sending in any logs as they become available: steve_wood62@hotmail.com
Canada - Potentially embarrassing information requests "amber-lighted" by bureaucrats

From Canada.com
"The federal government is singling out the access to information requests of some Canadians for closer scrutiny and special treatment, despite Prime Minister Stephen Harper's sharp criticism of the practice when he was in opposition.
According to an e-mail dated June 12, by Citizenship and Immigration Canada access co-ordinator Heather Primeau, the government is ''amber lighting'' access requests that are considered to be more politically sensitive."

Further background on amber lighting: Alasdair Roberts - Spin control and freedom of information: Lessons for the United Kingdom from Canada. Public Administration, 83.1 (Spring 2005): 1-23
Two interesting jobs

Thought these two jobs at the BBC maybe of interest to some readers:

2 Job Vacancies
Information Policy and Compliance Team, BBC
Closing Date: 9 October

Senior Advisor, Policy
https://jobs.bbc.co.uk/jobportal/search/vacancy.aspx?id=10106

The interaction between the BBC and the public is central to many of the BBC’s objectives under the new Charter. The Freedom of Information Act (FOI) and the Data Protection Act (DPA) are a key part of that interaction. The principle role of the Senior Advisor, Policy will be to ensure the BBC’s policies in these areas are at the leading edge for media organisations. The policies need to move both with the changes in legislation and its interpretation and the rapidly moving media and technology arenas. Keeping the balance between the BBC’s openness agenda and its need to ensure its effectiveness in a highly competitive media marketplace is also a key challenge for the Information Policy and Compliance team.

Senior Advisor, Compliance
https://jobs.bbc.co.uk/jobportal/search/vacancy.aspx?id=10105

The interaction between the BBC and the public is central to many of the BBC’s objectives under the new Charter. The Freedom of Information Act (FOIA) and the Data Protection Act (DPA) are key parts of that interaction. The principle role of the Senior Advisor, Compliance will be to ensure the BBC is acting in accordance with the FOIA and the DPA. You will take an overview of requests under both Acts, ensuring that the processes are working well, and are fit for purpose. You will provide advice on the Acts and supervise the information Co-ordinators in the team, as they deal with requests. You will lead on high profile cases and will provide advice on complex cases. You will also be responsible for the liaison with the Information Commissioner’s Office (ICO) and other key stakeholders.

Monday, October 02, 2006

New Study on Access to Information Finds Young Democracies Outperform Established Ones

A comparative study on access to information in 14 countries finds that transitional democracies outperformed established ones in providing information about government activities. Bulgaria, Romania, Armenia, Mexico, and Peru did better in answering citizens' requests for information than France and Spain.

The book, Transparency and Silence, published today by the Open Society Justice Initiative and available online at www.justiceinitiative.org, documents how various countries did—or did not—honor the right of access to information.

In analyzing over 1,900 requests for information filed in 14 countries, Transparency & Silence finds that countries with access to information laws performed better than those with no law or with administrative provisions instead of a law.

"Access to information laws have been key tools of democratic reform in Eastern Europe," said James A. Goldston, executive director of the Open Society Justice Initiative. "This week's official endorsement of EU membership for Bulgaria and Romania—two countries that performed well in our survey, despite being among the world's most closed societies until 1989—underscores the importance of transparency in consolidating the rule of law."


Further details
Mixed Messages For Local E-Service Take-up Strategy

Not strictly FOI based but the following from E-Government Bulletin flags up some issues about Central Govt spending on promoting websites and e-services:
"Although public use of local e-services is on the rise it is not clear that central government initiatives to increase take-up, such as the 5 million pound campaign run by the Department of Communities and Local Government (DCLG), has had a major impact on the behaviour of the public according to research from the Society of IT Management, (Socitm).

The Socitm Insight Website Take-Up Service provides information to participating local authorities about the total number of unique visitors to their sites. In June 2006, it amended three of the questions in the exit survey on 59 participating councils' websites in order to provide information for the Department for Communities and Local Government (DCLG) about the effectiveness of the take-up campaign, which included press, radio and poster advertising."
Media update

The Guardian - Campaigners attack Shell's charity arm over Sakhalin talks
"An attempt by Shell to portray itself as a model of corporate social responsibility was undermined last night after Whitehall documents showed its charitable arm discussing a key commercial project with a British government minister. The multinational oil company says the charity it funds - the Shell Foundation - is completely independent and contributes nothing towards its profits. But documents released to the Guardian under the Freedom of Information Act show the director of the charity, Kurt Hoffman, and the chairman of Shell UK, James Smith, lobbied the secretary of state for international development, Hilary Benn, in January at a meeting they had asked for."


IC North Wales - Councils fork out £5m for advice
"MORE than £5m was spent by four North Wales councils on consultants in only one year, the Daily Post can reveal.A whopping £5.3m of taxpayers' money was spent on outside bodies' advice in one financial year, with close to £3m spent by only one council.The details were supplied to the Daily Post under the Freedom of Information Act, although one county council refused to supply its figures."

The Scotsman - Open government?
"What is open government? Surely one must be that we know both where tax-payers' money is spent, and how effectively it is being spent. The Scottish Executive paid more than £130,000 for an independent review of their spending, and we were assured it would be published in the spring of 2006. Now the First Minister, Jack McConnell, has seen the review and has changed his mind about publication. Now he says we must wait until after the Scottish elections."

TES Soctland - Aberdeenshire Council appeals against ruling by Scottish Information Commissioner
"Aberdeenshire Council has performed a last-minute U-turn and decided to appeal to the Court of Session against a ruling by the Scottish Information Commissioner."

Belfast Telegraph - NIO freedom fighters
"Peter Hain's policies are so unpopular that the lives of senior civil servants would be put in danger if their identities were revealed - and that's according to the GOVERNMENT! the NIO made the astonishing admission in response to a Freedom of Information request to provide details of key senior staff who devise and implement Government policy here. After months of delay, the NIO suggested civil servants' lives would be put in jeopardy because they would "be exposed to increased risk of targeting or attack should their involvement in certain work be made public".

Scotsman - Immigration drive hijacked
"However, government documents obtained by Scotland on Sunday show that the scheme has been seized on by conmen in Nigeria to exploit desperate youngsters who want a new life in Britain."

Eastern Daily Press - Forces hit by language bills
"Statistics released by police bosses nationwide under the Freedom of Information Act show forces are now spending six figure sums each year on translation fees compared with tens of thousands five years ago."

Hold the front page - Belfast paper wins FOI case after five-month battle
"The Belfast Telegraph has won a five-month battle for information on the financial problems of a cash-strapped education board. The Information Commissioner ordered the release of a report compiled by external consultants on the finances of the South Eastern Education and Library Board after a Freedom of Information request by the paper in April."

IC Surrey - Maternity unit has 22 cases of MRSA in 30 months
"MORE than 20 babies contracted MRSA at East Surrey Hospital's maternity unit in the space of twoand-a-half years. Between January 2004 and June 2006, a total of 22 newborns were infected with the superbug after staying on the ward. The statistics show the most recent rate of infections since maternity services were transferred from Crawley Hospital to East Surrey Hospital in 2001. Surrey and Sussex Healthcare NHS Trust released the figures after a request by the News under the Freedom of Information Act."