Thursday, February 25, 2010

Campaign welcomes decision to drop proposed cabinet papers exemption

The government’s announcement that it has dropped its proposal to exempt cabinet papers from the Freedom of Information Act, and that it will reduce the 30 year rule to 20 years, was welcomed by the Campaign for Freedom of Information today.

The changes follow a review of the 30 year rule by a committee chaired by Paul Dacre, managing editor of Associated News, and set up by the prime minister. In response to the review’s recommendations, the government announced that old government records would be publicly available in The National Archives after 20 years, instead of the current 30 years (though the review had called for 15-year period). But it also said it would create two new absolute exemptions to the FOI Act, one for cabinet papers and the other for the Royal Family. In neither case would the Act’s public interest test apply.

But today the government announced that it had decided that a new exemption for cabinet papers was not necessary. The 20 year period for releasing old files will be introduced. A new exemption for the Royal Family will be created.

The Campaign’s director Maurice Frankel said:
We are extremely pleased that the prime minister has decided to drop the proposed cabinet exemption. That would have ruled out the release of any paper circulated to cabinet or a cabinet committee, even if there would be no harm to decision-making or collective responsibility. Requests for such documents will now continue to be considered on their merits. Cabinet minutes may be unlikely to emerge, given the way the ministerial veto has been used so far, though that too is not entirely out of the question, particularly for older or less contentious material or where the public interest in disclosure is overwhelming. And the 20 year rule will mean old records are more likely to emerge while the events they refer to are still remembered.
The Campaign pointed out that cabinet or cabinet committee papers were protected by existing FOI exemptions for policy formulation and ministerial communications, subject to the Act’s public interest test. The government also has the power to veto decisions of the Information Commissioner or Tribunal. The veto has been used twice to date, blocking the release of cabinet minutes about the war in Iraq and cabinet committee minutes on devolution. However, the veto is judicially reviewable, which provides some safeguard against its casual use.

The new 20 year rule will be phased in over 10 years by doubling the volume of old government records released each year.

However, a new absolute exemption, which will protect information about the monarch, the heir and second in line to the throne for 20 years and then, if the individual concerned is still alive, until 5 years after their death. This exemption will not be subject to the Act’s public interest test. The Campaign said it regretted this change, and believed the public interest test should continue to apply to such matters.

For other members of the Royal Family, an exemption will apply for the same length of time but will be subject to the public interest test.

Notes

The government’s announcement is at: http://www.justice.gov.uk/about/docs/government-response-30-year-rule-review.pdf

The Government’s outline response to the Dacre report is set out in Gordon Brown’s ‘statement on constitutional renewal’ of 10.6.09 http://www.number10.gov.uk/Page19579

The Dacre report can be found at: http://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

Tuesday, February 09, 2010

Scottish Information Commissioner Newsletter Jan/Feb 2010

The latest edition of Inform, the Scottish Information Commissioner's newsletter, has been published:
In this edition, I reflect on 5 years of FOI, and look forward to the next 5 years. I update readers on our new guidance following a recent Court of Session ruling, and report on the events my Office is holding to celebrate the 5th anniversary of FOI in Scotland.
http://www.itspublicknowledge.info/home/News/Newsletter/InformNewsletterJanFeb2010.asp

Information Commissioner's e-newsletter edition 16

The January 2010 edition of the ICO's e-newsletter has been published:

http://www.ico.gov.uk/tools_and_resources/enewsletter_and_alerts/previous_enewsletters/English/Edition16.aspx

Friday, February 05, 2010

Adequacy of Ministry of Justice's FOI statistics

The Campaign for Freedom of Information has responded to a request from the UK Statistics Authority for its views on the adequacy of the Ministry of Justice's freedom of information monitoring statistics. The response outlines the Campaign's concerns about the quality of the statistics describing the delays by central government in dealing with requests.

Download the response here.

Wednesday, February 03, 2010

Prime Minister's speech on transforming politics

The Prime Minister has given a speech on transforming politics in which he set out the next steps of the Government's programme of constitutional and parliamentary reform. He also spoke about the importance of citizen empowerment through opening up government and and reducing the time taken to release official documents:
But the test of our commitment to democracy is not merely the changes we make to the institutions at the centre: it is how far we are prepared to give power away; to give citizens themselves greater control over their lives.

That is why citizen empowerment must be at the heart of the new politics I want to see.

That means opening up government, with much more control and information held by the public and not concentrated in Westminster and Whitehall. Over and above our commitment to transparency through FOI we are committed to progressively reducing the time taken to release official documents - ensuring the public have access to public papers far quicker than ever before.

And we can now open up government in new transformative ways not open to us a decade ago.

We have brought public services closer to people in the internet age through the direct.gov website.

And last year I invited Sir Tim Berners Lee, the inventor of the world wide web, and Professor Nigel Shadbolt, to work with us on opening up even more government information to all the people of the country.

In a short space of months we have now created data.gov.uk which already opens over 2,500 data sets to enable people to hold us to account and make decisions about their public services - from monitoring traffic accidents locally to seeing how your local schools are performing.

But this is just the start of creating new, more transparent public services and public sector bodies.

Public services will not only be more personal in future but they will be more interactive - with the ability of the citizen enhanced to make their views known directly and influence the way our communities work.

Already as a result of the Berners Lee /Shadbolt initiative a transformation is at work. A myriad of applications are being developed on the web by citizens for citizens – new websites on health, education, crime and local communities - that inform, enrich and enliven our democracy. It is truly direct democracy in action.

Over the next few months we will be releasing more and more information; we will make it easier to link different datasets together so that you can assess the overall picture of public services in your community; and Nigel Shadbolt is working with local government to extend the same principles there.
A transcript of the speech, delivered at 'The New Politics' event hosted by IPPR on 2 Feb 2010 at the RSA, is available here and video here.

Tuesday, February 02, 2010

Information Commissioner & Tribunal Decisions course

The Campaign for Freedom of Information is running the following half-day training course:

'Information Commissioner & Tribunal Decisions
- what do they mean in practice?'


London 7 June 2010

The course, which is aimed at those with a good working knowledge of the legislation, highlights the latest developments in the way the main exemptions, the public interest test and the legislation's procedural requirements are being interpreted.

It will cover the most significant decisions that have been issued since our last course in November 2009. The content will therefore vary, depending on the cases that have been decided, but the course typically addresses issues such as: "fair" and "unfair" disclosures of personal data; the FOI/EIR border, the application of specific exemptions; where the public interest line is being drawn; vexatious requests; the cost limit, advice & assistance and other administrative provisions.

The course will be presented by the Campaign's director, Maurice Frankel, who has worked in the field for 26 years. Significant discounts are available for multiple bookings from the same organisation.

Further information:
http://www.cfoi.org.uk/pdf/foidecisions_june10.pdf

More on time limit for prosecutions under s77 of FOIA

A number of comments on other blogs have suggested that a prosecution could be brought under section 77 of the FOI Act even if it was more than 6 months after the offence had been committed.

Section 127(1) of the Magistrates Court Act states that “a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."

The question is: does this mean that a prosecuting authority can initiate a prosecution either within 6 months of the offence occurring or within 6 months of a "complaint" about this matter being made?

Section 127(1) of the Magistrates Court Act appears to be referring to two different types of proceedings, proceedings for an offence and proceedings which involve the making of a complaint to the court. We do not think they should be seen as two different ways of referring to the same potential prosecution.

An example of proceedings for a “complaint” can be found in section 82 of the Environmental Protection Act 1990 which states:
"A magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance."
This type of proceeding would have to be brought within 6 months from the date when “the matter of the complaint arose”.

The “date on which the matter of the complaint arose” does not seem to refer to the date on which the complaint was made, but to the date of the events which led to the complaint.

This seems clear if you strip out the references to an “offence” in section 127(1) but keep those which refer to a complaint. The section then reads:
“a magistrates’ court shall not... hear a complaint unless ...the complaint [was] made, within 6 months from the time when...the matter of complaint arose.”
That is not saying that the court must hear the complaint within 6 months of the complaint being made but within 6 months of the matter complained about occurring. In relation to a complaint about statutory nuisance under the Environmental Protection Act, the court would have to deal with the matter within 6 months of the nuisance occurring.

This suggests that what section 127(1) means is that (a) where proceedings for an offence are brought, they must take place within 6 months of the offence occurring and (b) where proceedings relating to a complaint are brought, they must take place within 6 months of the events which are complained about.

Many laws other than the FOI Act have been amended to extend this 6 month limit. None of those amendments would have been necessary if section 127(1) of the Magistrates Court Act already allowed a prosecution to be brought either within 6 months of the offence occurring or within 6 months of it coming to light.

One recent example are the Building Regulations. In July 2007, the Department of Communities and Local Government issued a consultation paper seeking views on whether the 6 month limit should be extended in relation to these regulations. The paper, entitled “Longer time limits for prosecution of breaches of Building Regulations” said:
"2.4. Because prosecutions must be brought in a magistrates’ court, they must comply with the rules relating to such courts. Currently, section 127(1) of the Magistrates’ Courts Act 1980 requires that any prosecution in a magistrates’ court must be brought within 6 months of the date the offence was committed. Consequently, local authorities must bring prosecutions under section 35 of the Building Act for breaches of building regulations within 6 months of completion of the offending work. Representations have been received from representatives of local authorities and others that this can operate as an obstacle to effective enforcement, given that there can be latent breaches or those discovered after the expiry of the 6 months’ time limit. Such a regime can be difficult to administer when the pressure of normal building control work can crowd out resources for prosecution."
Later the consultation paper says:
"Organisations representing local authorities have made repeated representations in recent years about the effect that the current time limits have on their ability to pursue non-compliance. With the 6 month time limit for starting proceedings at magistrates’ courts running from the date of the offence, i.e. the completion of the offending works, and late emergence of (what may not be obvious) building defects, this can easily eat into the time that local authority prosecutors need to prepare an effective case. As a result, cases of non compliance can escape prosecution."
Following this consultation, the Building Regulations were amended by The Building (Amendment) Regulations 2008. The new regulations allow a prosecution to be brought within 2 years of the offence being committed, provided this was within 6 months of the prosecuting authority learning about the offence. Clearly, this change would not have been needed if section 127(1) already had the wider meaning that some have suggested.

In July 2009 the Campaign for Freedom of Information drafted an amendment, which Lord Dubs attempted to make to the Coroners and Justice Bill. This would have amended the Freedom of Information Act to allow a section 77 prosecution to be brought within 3 years of the offence being committed, provided it was within 6 months of the ICO obtaining evidence of the offence. The Information Commissioners Office supported this amendment.

The government did not accept the amendment because - it claimed - there was no evidence that the 6 month limit was causing systemic problems. It did say that if such evidence arose, it would look for ways to put the matter right, and if necessary amend the FOI Act. If the government accepted that the 6 month limit only ran from the time when the ICO became aware of the offence, it would have said the amendment was unnecessary for that reason.

That has also tended to confirm that section 127(1) does not at present allow a prosecution to be brought more than 6 months after the offence itself has occurred, and that the FOI Act should be amended so that prosecutions can be brought after that 6 month period is over.

In the Sunday Telegraph on January 30 2010, Christopher Booker suggested that a prosecution for conspiracy to commit an offence under s 77 of the FOI Act could be brought under the Criminal Law Act 1977, even if the 6 month period had expired.

However, it appears that any proceedings for conspiracy to commit an offence would be subject to the same time limits as those applying to the offence itself. Section 4(4) of the 1977 Act states:
"Where (a) an offence has been committed in pursuance of any agreement; and (b) proceedings may not be instituted for that offence because any time limit applicable to the institution of any such proceedings has expired, proceedings under section 1 above for conspiracy to commit that offence shall not be instituted against any person on the basis of that agreement."
This suggests that, even if a conspiracy charge were possible, it would not provide a way round the problem created by the 6 month limit on prosecutions in the Magistrates Court Act.