Monday, June 25, 2007

Commons Committee rejects FOI restriction plans

Constitutional Affairs Committee press notice No. 35:
"An influential Committee of MPs has called on the Government to scrap its plans to restrict freedom of information and has criticized the Bill to exempt MPs from freedom of information rules.

In a report released today, Monday 25 June 2007, the Constitutional Affairs Select Committee says Ministers should take the opportunity afforded by their consultation on proposed changes to the charging regime for Freedom of Information (FOI) requests to abandon the “unnecessary, unpopular and undesirable” reforms.

The Committee says Government has not adequately weighed up the balance of costs and benefits to public authorities and the public of providing greater access to information and openness.

The Committee concludes:

“There is no objective evidence that any change is necessary. The cost-benefit analysis provided with the Government's consultation papers is incomplete. There is clear evidence that the proposed amendments could be open to manipulation and abuse. There is no sign that any consideration has been given to proper funding of the independent review process. The proposed measures have the scope significantly to reduce the flow of information into the public domain. We recommend that the proposed new charging regime be withdrawn.

“The proposed regime could result in public authorities avoiding answers to embarrassing, contentious or high-profile cases as the number of internal consultees rises in proportion to the sensitivity of particular requests.“

The Committee says the Bill for an exemption from the FOI Act, passed by the Commons but currently stalled in the House of Lords, “would be contrary to the culture of openness which we have argued should prevail in the public service.”

Rt Hon Alan Beith MP, Chairman of the Committee, said:

“The Freedom of Information Act works. It enhances the rights of the public. Neither the Government nor MPs should be seeking to limit its effectiveness, and there is no evidence here to support either the Government's proposals on fees or the Bill. I am hopeful that both will now be dropped.”

The Committee also expresses concern that Information Commissioner's Office (ICO) does not have sufficient resources to deliver an effective FOI complaints resolution service - especially with the predicted increase in complaints if the proposed fees changes were brought in - and repeats its call for the ICO to be made independent of Government and instead funded by and accountable to Parliament. “We question whether it is appropriate for the Ministry of Justice to set the funding levels for the independent regulator and thereby directly influence its capacity to investigate complaints.” "
Read the Committee's full report:
HTML version
Pdf version
Lords select committee report on Maclean Bill

The Lords' Constitution Committee, which examines the constitutional implications of all public bills coming before the House, has published a report on the Freedom of Information (Amendment) Bill. The Committee's main conclusions are:
"In several respects we believe that the Freedom of Information (Amendment) Bill does not meet the requirements of caution and proportionality in enacting legislation of constitutional importance."

"During the passage of the Freedom of Information Bill in 2000 there was careful consideration of whether the administrative functions of the House of Commons and House of Lords should or should not be exempt from the Act. The decision was taken that they should not be exempt. We are unaware of any compelling case, based on constitutional principle, to change that decision. We take the view that voluntary undertakings, even those given by the Speaker of the House of Commons or those that might be given by the House of Lords authorities in the future, cannot be regarded (from a constitutional point of view) as a satisfactory substitute for a legally enforceable right to access to information."

Protecting personal information of members of the public from disclosure

"We believe that the House may be in a better position to assess the nature and extent of the problem, and any proposed remedies, in the light of a report by the Information Commissioner."

"The disclosure of correspondence between members of both Houses of Parliament and public authorities on the subject of individuals is a serious matter and should be explicitly prohibited. However, we do not believe that this mischief is addressed in a sufficiently proportionate and specific manner in clause 1(3) of the bill."
Read the full report (Pdf)

Thursday, June 21, 2007

Scottish Commissioner orders release of contract information

News Release 21 June 2007:
The Scottish Information Commissioner, Kevin Dunion, has today issued a decision requiring VisitScotland to release copies of contracts it holds with eTourism Ltd (the joint venture company which operates its web portal and booking service to Mr Alan Keith, Chairman of the Association of Dumfries and Galloway Accommodation Providers. The contracts detail the financial and operational arrangements for the website.

VisitScotland had originally refused to disclose all but 5 of the contracts, claiming the information was exempt under Section 36(2) of the Freedom of Information (Scotland) Act 2002. This section allows that information provided to a public authority by a third party is exempt from release, where disclosure would constitute an actionable breach of confidence. Both conditions must be satisfied in order to claim this exemption.

However, after investigation, the Commissioner decided that information in the contract did not constitute information provided by a third party to VisitScotland. He therefore ruled that the exemption in S36(2) does not apply in this case.

Kevin Dunion, the Scottish Information Commissioner said:
“This is an important decision which has implications for authorities beyond this particular case. I have taken the view that when contracts are the outcome of negotiations between parties, it cannot normally be said that the concluded contract is information which has been obtained from another person. As a result withholding the contract under the confidentiality exemption in the Freedom of Information (Scotland) Act is not justified.”

The Commissioner's decision is in line with a similar case heard by the Information Tribunal, which deals with appeals under the UK freedom of information laws. The Tribunal decided that the process of negotiation of a contract between Derry City Airport and Ryanair involved an exchange between the parties, but that information in the concluded contract cannot be considered to fall within the scope of third party information within the confidentiality exemption.

The Commissioner has ordered VisitScotland to provide Mr Keith with all the information he had requested within 45 days.


Wednesday, June 20, 2007

Annual report on FOI in central government 2006

The Ministry of Justice has published the Annual Report on the FOI Act for 2006 which includes the statistics on the performance of central government in handling requests.

Foreword by Lord Falconer of Thoroton:
"It has been more than 2 years since the Freedom of Information Act came into force bringing about hugely significant reform that has made government and public authorities more open than ever before. At the core of Freedom of Information is the desire to bring about better government. From an increasingly beneficial impact on decision making to instilling a culture of openness and routine publication, a far greater amount of information is now more accessible than ever known before. The Act has had a positive effect on making the government and public authorities more accountable to the people they are there to serve."
Download the full report.

Tuesday, June 19, 2007

FOI (Amendment) (No. 2) Bill adjourned

Tom Brake's Freedom of Information (Amendment) (No. 2) Bill was opposed at second reading in the Commons last Friday and adjourned until 29 June. See earlier post for an explanation of the bill.

Monday, June 18, 2007

Recent ICO press releases

Home Office right to withhold information under FOI
The Information Commissioner’s Office (ICO) has ruled under the Freedom of Information Act that the Home Office was right to withhold five applications for licences to test drugs on animals. Read the press release.

Information Commissioner respects MPs' private lives in ruling on their additional cost allowances
The Information Commissioner has ordered the House of Commons to release information on the total expenses claimed by some MPs for areas such as mortgage costs, cleaning and furnishings. Read the press release.

Councils right to withhold retirement details under FOI
The Information Commissioner's Office has upheld the decisions by two local authorities to withhold personal information relating to a third party under the Freedom of Information Act. Read the press release.

National Gallery right to withhold information under FOI
The Information Commissioner's Office has ruled under the Freedom of Information Act that the National Gallery was right to withhold correspondence between the Gallery and the owner of a specific painting. Read the press release.

Friday, June 15, 2007

Maclean Bill fails to progress in Lords

David Maclean MP's Freedom of Information (Amendment) Bill has so far not found a sponsor in the House of Lords and cannot now be introduced before the summer recess. If a sponsor is found, it is possible that the Bill could still be introduced in October. However, time is running out and the government would probably have to make time available for it, if it were to stand any chance of making progress. It seems unlikely that this would happen while the bill is in its current form. But it is conceivable that someone might still seek to take the bill forward in a highly truncated form (eg by proposing to restrict it to deal solely with MPs' correspondence on behalf of individual constituents).

During Business Questions on Thursday the Leader of the House Jack Straw announced that detailed guidance would be issued to public authorities on requests involving MPs' constituency correspondence. This seems to suggest that the government recognises that the Bill will not reach the statute book.

Business Questions:
"Martin Salter (Reading, West) (Lab): How does the Leader of the House intend to ensure that correspondence from MPs on behalf of their constituents is not subject to public disclosure if the Freedom of Information (Amendment) Bill fails to make progress in the other place?

Mr. Straw: We are taking every step, in consultation with the Ministry of Justice and with a great deal of consideration by the House of Commons Commission and the Department of Finance and Administration in this place to ensure that it is made absolutely clear to public authorities that where they receive requests for the disclosure of correspondence that involves Members of Parliament, first, in every case the Member of Parliament must be consulted and, secondly, it is probable that in almost every case such correspondence is covered either by the exemptions, which are absolute in respect of confidentiality, or by data protection or by many of the other qualified exemptions within the Freedom of Information Act 2000. Detailed guidance has been drafted. I went through it again last night. Opposition Front-Bench spokesmen are also being consulted. It should lead to a better situation than we faced before. I underline that Members of Parliament, for very good reasons, are not public authorities and therefore are not subject to freedom of information legislation. That was agreed without argument eight years ago.

Mr. David Heath (Somerton and Frome) (LD): That guidance will be very welcome in explaining the position to authorities that do not understand the existing law.


Mr. David Winnick (Walsall, North) (Lab): If indeed the Freedom of Information (Amendment) Bill is dead and, I hope, buried for ever, my right hon. Friend should be aware that if there is a genuine problem over the disclosure of MPs’ correspondence, I should support a measure that will deal with it. It is a pity that the problem was not dealt with at the beginning, rather than trying to exempt Parliament from freedom of information provisions. Perhaps the Data Protection Act 1998 should be considered with regard to MPs’ correspondence.

Mr. Straw: I am grateful to my hon. Friend for his conciliatory words. As the right hon. Member for Maidenhead (Mrs. May) knows, as soon as the issue was raised with me—by two Opposition Members who represent Kent constituencies—I took it up. I held meetings with them and the Information Commissioner, which involved the other parties, too, to try to sort through things. However, the difficulty that had arisen—not caused by the House or the then Department for Constitutional Affairs—was that public authorities were getting ready to issue correspondence without so much as a by your leave from Members of Parliament, still less any consideration of the exemptions that might apply. As there was not a word of argument about the fact that Members of Parliament, as Members of Parliament, should not be classified as public authorities for the purpose of the Act, such an action would have been very serious indeed and would have destroyed the relationship between Members and their constituents, which is fundamental to the way in which we operate on their behalf. That is the issue. If we can arrive by other means at the end that everybody sought, we shall all celebrate."

Wednesday, June 13, 2007

Freedom of Information (Amendment) (No. 2) Bill

Tom Brake MP presented this ten-minute rule bill in the Commons yesterday:
"My Bill will demonstrate to our constituents that Members are committed not only to protecting freedom of information legislation, but to reinforcing it. It will strengthen freedom of information powers in three key areas: it will remove the ministerial veto; it will limit the time allowed for public authorities to respond to requests involving consideration of the public interest; and it will extend the range of bodies covered by freedom of information legislation."

Public authorities
Clause 1 of the bill extends the FOI Act to "public sector contractors". These are defined as bodies with contracts with a public authority which are valued at more than £1 million and last for more than 12 months. A "public sector contrator" is a contractor who (a) is contracted to provide a service which the authority itself is required to provide (eg social services, operation of prisons) (b) is contracted to provide any other service directly to the public (c) is not involved in providing services to the public but whose contract may have implications for public health and safety or the enviroment. If the bill were passed the FOI right of access would only apply to information about contracts with the public authority - not to the contractor's other contracts.

Clause 1 of the bill also brings Academy schools within the scope of the FOI Act.

Time for compliance
Clause 2 of the bill would limit the extra time that authorities are allowed to take to respond to requests which involve the Act's public interest test to an additional 20 working days, but no more. For most authorities this would require such requests to be dealt within within a maximum of 40 working days.

An exception is made for the National Archives and other records authorities, whose standard response is 30, not 20, working days, to allow them to consult the authority which supplied the record to them. These authorities would also be limited to a further 20 days, ie. they would have to deal with requests involving the public interest test within a maximum of 50 working days.

Ministerial veto
Clause 3 of the bill would abolish the ministerial veto, contained in section 53 of the FOI Act, which allows ministers to overrule any decision which the Information Commissioner or Information Tribunal takes requiring a government department to release information on public interest grounds.

Fees regulations
Clause 4 of the bill would require any changes to the fees regulations under the Act to be made by the 'positive resolution' procedure. At present they are dealt with under the 'negative resolution' procedure.

Under the present arrangements changes to the fees regulations, which can severely restrict the right of access, would go through the Commons automatically unless objected to. Even if objected to, they would be discussed only in a committee of MPs, not by the whole House of Commons. The change proposed by the bill would make it possible for such changes to be debated and voted on by the full House of Commons.

The bill has now been printed and will join the queue of private members bills awaiting a second reading on Friday 15 June.

Read Tom Brake's speech in Hansard.

Full text of the bill here.

Tuesday, June 12, 2007

Ministry must reveal advice to Prescott over controversial tower

The Guardian 11 June 2007
Clare Dyer, legal editor
The Information Tribunal has ruled that civil servants' advice to ministers on major planning decisions should be disclosed to anyone who asks for it once the decision is taken.

The ruling, obtained by the former Tory environment secretary Lord Baker, was hailed yesterday by Friends of the Earth as a "significant breakthrough which means that members of the public will now have a much better understanding of why a controversial major planning decision has been made".

The Department for Communities and Local Government - which took over responsibility for planning from the Office of the Deputy Prime Minister last year - has until June 29 to release the advice officials gave John Prescott when he was considering the application for the 50-storey residential Vauxhall Tower near Vauxhall Bridge overlooking the Thames in south London.
Read the full story.

Note: The Tribunal's decision is not yet on its website.
MPs have a chance to show they are serious about Freedom of Information - Brake

Liberal Democrats press release 11 June 2007:
Liberal Democrat Local Government Spokesman Tom Brake MP is to press for tougher Freedom of Information (FOI) legislation tomorrow when he introduces a ten minute rule bill in Parliament.

The Freedom of Information (Amendment) (No 2) bill, which is also sponsored by key FOI campaigners Norman Baker MP and Simon Hughes MP, will seek to remove the veto which allows ministers to overrule the Information Commissioner and Information Tribunal. It will also introduce a time limit for responses to public interest FOI requests.

The Bill will also try to bring school academies and large private contractors working for public authorities within the scope of the FOI legislation.

Tom Brake said,

"This Bill will give MPs an opportunity to prove that, after the debacle of just a few weeks ago over David Maclean’s Bill, we are serious about strengthening FOI legislation."

"Members must show that they will take a firm stand against any attempts to water down existing legislation."

Monday, June 11, 2007

Green League 2007

The student campaign network People & Planet have published the first ever green league showing the environmental performance of Britain's universites:
People & Planets' Green League 2007 ranks all British universities - awarding them with a First, 2:1, 2:2, Third, or Fail - based on eight different environmental criteria, both policy and performance related. It incorporates data never before published in the public domain, obtained under the Freedom of Information Act, including the percentage of energy purchased from renewable sources, percentage of waste recycled, and CO2 emissions for each institution.
See the Green League 2007.

Friday, June 08, 2007

ICO complaints

This PQ from a few weeks ago gives the current state of play regarding the number of complaints awaiting allocation at the ICO.

2 May 2007 : Column 1726W

Mr. Hancock: To ask the Minister of State, Department for Constitutional Affairs how many complaints under the Freedom of Information Act 2000 have been awaiting allocation to a case officer of the Information Commissioner's Offices (ICO) for (a) three months, (b) six months, (c) nine months and (d) longer, broken down by ICO (i) regional offices and (ii) teams; and if she will make a statement. [134506]

Ms Harman: As of 31 March 2007 the number of complaints under the Freedom of Information Act 2000 awaiting allocation to a case officer at the Information Commissioner's Office, broken down by time and team, was as detailed in the following table.

Constituents' privacy
Some recent PQs

4 Jun 2007 : Column WA157

Lord Lester of Herne Hill asked Her Majesty's Government:
What assessment they have made of the extent to which the Data Protection Act 1998, the Freedom of Information Act 2000 and the Human Rights Act 1998 contain appropriate and necessary safeguards to limit or restrict the right of public access to information communicated to public authorities by Members of Parliament in their capacity as such, for preventing the disclosure of information received in confidence, and to respect the right to private life and correspondence. [HL3926]

The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Ashton of Upholland): The Data Protection Act 1998 and the Freedom of Information Act 2000 were drafted by this Government with the need to protect confidential and personal information in mind. There are provisions within the Acts to protect such information where appropriate. The Government have not made a separate assessment of the safeguards within these Acts. The Human Rights Act 1998 contains provisions to give further effect to the convention rights, which include the right to respect for private life under Article 8 of the European Convention on Human Rights.

4 Jun 2007 : Column WA158

Lord Lester of Herne Hill asked Her Majesty's Government:
Whether they have reviewed the extent to which the Data Protection Act 1998 or the Freedom of Information Act 2000 need to be amended in the public interest so as further to limit or restrict the right of public access (a) to information about the activities of Members of Parliament, or (b) to information communicated to public authorities by Members of Parliament in their capacity as such; and, if so, for what reasons and in what respects are such amendments needed. [HL3927]

Baroness Ashton of Upholland: The Government have not made a review of the kind suggested by the noble Lord. There are appropriate provisions already in both Acts to protect sensitive information.

Lord Lester of Herne Hill asked Her Majesty's Government:
Whether they have received notification of any instances in which personal or confidential information communicated to public authorities by Members of Parliament in their capacity as such has been improperly disclosed, whether in breach of the Data Protection Act 1998 or the Freedom of Information Act 2000, or otherwise. [HL3928]

Baroness Ashton of Upholland: The Government have not received notification of any improper disclosure of personal or confidential information communicated to public authorities by Members of Parliament in their capacity as such.

Lord Lester of Herne Hill asked Her Majesty's Government:
What remedies are available to individuals whose right to respect for their personal privacy has been infringed by virtue of the unauthorised disclosure of personal or confidential information about themselves, communicated to public authorities by Members of Parliament in their capacity as such. [HL3929]

Baroness Ashton of Upholland: An individual has the right to remedies following an unauthorised disclosure of personal information only where such a disclosure has been proven to contravene the relevant legislation (for example, the Data Protection Act 1998) or the common law (for example, where a duty of confidence is owed in respect of the information in question).

Thursday, June 07, 2007

Freedom of Information (Amendment) (No. 2) Bill

Tom Brake MP (Lib Dem) will introduce this Ten Minute Rule Bill in the House of Commons next Tuesday 12 June. The Bill would remove ministers' power to veto decisions of the Information Commissioner and Information Tribunal, limit the time by which public authorities can extend the normal 20 day limit for responding to requests to consider the public interest and amend the definition of public authorities.

See House of Commons Future Business Part D:
Tom Brake

That leave be given to bring in a Bill to amend the Freedom of Information Act 2000 to remove the provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal; to limit the time allowed for public authorities to respond to requests involving consideration of the public interest; to amend the definition of public authorities; and for connected purposes.
More to follow on this later.

Wednesday, June 06, 2007

Prime Minister's Questions

Q4. [140252] Mr. David Winnick (Walsall, North) (Lab): Does my right hon. Friend accept that among the important reforms and changes that have occurred on his watch over the past 10 years is freedom of information? Why should Parliament alone, of all the public bodies in this country, be able to contract out of a law? Can my right hon. Friend explain why the two Front Benches are supporting the private Member’s Bill, when it should be thrown in the dustbin?

The Prime Minister: Because I have enormous respect for my hon. Friend and because this may be the last time that he asks me a question at Prime Minister’s questions, I do not want to disagree with him—but if I were pushed to, I might. It is important—and this has been made clear—that on matters such as expenses, MPs continue to be very open. There is a consensus on that. A huge amount of scrutiny is given by the House about Members of Parliament and I do not think we should apologise for what we do in the House.

See Today in the Commons

Thanks to Paul Francis for pointing this out.

Monday, June 04, 2007

Civil servants told to destroy reports on risky IT projects

Tony Collins
Computer Weekly
Treasury officials are ordering the immediate destruction of "Gateway" internal reports into risky government IT schemes to prevent information on the projects being leaked.

Their action, a response to the Freedom of Information Act, comes even though the Treasury's Office of Government Commerce (OGC) has lost two appeals to keep Gateway reports secret. Managed by the OGC, Gateway reviews are independent assessments of high and medium-risk IT-based and other projects at various stages in their lifecycle: projects such as the £5.3bn ID cards scheme and the NHS’s £12.4bn National Programme for IT.
The OGC paper on the Gateway review, seen by Computer Weekly, tells its teams, “You must securely dispose of the [final Gateway] report and all supporting documents immediately after delivery of the final report - which should be no later than seven days after the review."
Read the full story