Wednesday, March 31, 2010

Committee says govt should review time limit for prosecutions under s. 77 of the FOI Act

The Science and Technology Committee has published its report on the disclosure of climate data from the Climatic Research Unit (CRU) at the University of East Anglia. The report recommends that the Government should review the current six month time limit for prosecuting an offence under section 77 of the Act, which makes it an offence to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing disclosure. This is an issue which the Campaign for Freedom of Information has previously raised and was taken up by Lord Dubs who attempted to make an amendment to the Coroners and Justice Bill in July 2009 to extend the limit.
If the Minister was correct to assert in July 2009 that the Government had no evidence that the current six-month time limit presents a systemic problem, then it is now clear that such evidence exists. Irrespective of whether or not CRU breached the Freedom of Information Act 2000, we recommend that the Government review the operation of section 77 of the 2000 Act and the six month limit on the initiation of prosecutions provided by section 127(1) of the Magistrates Court Act 1980. (Paragraph 95) 
The report also recommends:
We regret that the ICO made a statement to the press that went beyond that which it could substantiate and that it took over a month for the ICO properly to put the record straight. We recommend that the ICO develop procedures to ensure that its public comments are checked and that mechanisms exist to swiftly correct any mis-statements or misinterpretations of such statements. (Paragraph 91)
There is prima facie evidence that CRU has breached the Freedom of Information Act 2000. It would, however, be premature, without a thorough investigation affording each party the opportunity to make representations, to conclude that UEA was in breach of the Act. In our view, it is unsatisfactory to leave the matter unresolved simply because of the operation of the six-month time limit on the initiation of prosecutions. Much of the reputation of CRU hangs on the issue. We conclude that the matter needs to be resolved conclusively—either by the Independent Climate Change Email Review or by the Information Commissioner. (Paragraph 93)  
We have already recommended in paragraph 54 above that in future information, including data and methodology, should be published proactively on the internet wherever possible. However, a culture of withholding information—from those perceived by CRU to be hostile to global warming—appears to have pervaded CRU’s approach to FOIA requests from the outset. We consider this to be unacceptable. (Paragraph 103)
We cannot reach a firm conclusion on the basis of the evidence we took but we must put on record our concern about the manner in which UEA allowed CRU to handle FOIA requests. Further, we found prima facie evidence to suggest that the UEA found ways to support the culture at CRU of resisting disclosure of information to climate change sceptics. The failure of UEA to grasp fully the potential damage to CRU and UEA by the non-disclosure of FOIA requests was regrettable. UEA needs to review its policy towards FOIA and re-assess how it can support academics whose expertise in this area is limited. (Paragraph 104)
Download the report here.

Tuesday, March 30, 2010

Orders to add/remove bodies to the FOI Act

In a written ministerial statement today (30 March 2010), the Justice minister Michael Wills, has confirmed that a Section 5 Order will be brought forward in the next parliamentary session, extending the Freedom of Information Act to Academy Schools, the Association of Chief Police Officers (ACPO), the Financial Ombudsman Service and the Universities and Colleges Admission Service (UCAS). This follows the Government's announcement on 16 July 2009 that it would consult these bodies with a view to bringing them within the Act's scope (see earlier post). 

The statement said:
Having carefully considered all the evidence it is clear that all of the bodies listed above perform functions of a public nature. I have written to each of the bodies to explain the decision in detail, and to identify the functions to which the Act will apply. However the reasons in brief are as follows:

ACPO’s functions are concerned with providing leadership for the police force, improving policing, acting as a voice for the force, encouraging high standards of performance and development, providing the strategic police response in times of national need and other ancillary and related functions. Policing is clearly recognised as a function of a public nature.  For these reasons it is appropriate to include ACPO in a section 5 order for all of their functions.

The Financial Ombudsman Service resolves disputes between consumers and providers of financial services. It was established under a statutory scheme in order to provide consumers with a quick and informal alternative to the courts.  We consider that the functions of FOS appear to be functions of a public nature and that it would be appropriate to include them in a section 5 order.

UCAS provides its member University and Colleges with admissions services. Without such services, those institutions – which are bodies listed as public authorities in either the Freedom of Information Act or the Freedom of Information (Scotland) Act – would need to perform these functions for themselves, and the information would be captured by those Acts. As UCAS provides these services on behalf of its members, it is clear that UCAS does perform a function of a public nature. 

Finally, although independent of local authority control, Academies are publicly-funded schools and a part of the state education system. Provision of state education is clearly a public function and parents and local residents should be able to access the same kind of information about Academy Schools as for any other state-funded school.  The Academy Trust, is the body responsible for the running of the Academy School.  In our view, the public functions of Academies are those set out in the funding agreement signed between the Academy Trust and the Department for Children, Schools and Families: in short, the establishment, maintenance and carrying on of an Academy. We propose to include Academy Trusts in a section 5 order for these purposes from the point at which they enter into funding agreements. 

The Order will be laid and debated at the earliest possible opportunity in the next parliamentary session, with the intention that it will commence in October 2011.
A news release from the Ministry of Justice is here.

Two orders under section 4 of the FOI Act were also laid before Parliament on 25 March 2010. The Freedom of Information (Additional Public Authorities) Order 2010 No. 937 adds public bodies to Schedule 1 of the FOI Act that meet the critieria in sections 4(2) and (3) of the Act. The explanatory memoranda explains:
The bodies that are being added to the list of public authorities in the Schedule to the Act include a number of newly created public bodies, and some that were not included previously but that perform comparable functions to those that are already in the list. The Act will apply to most of these bodies from 1st October 2010. The exceptions are the Building Regulations Advisory Committee for England and the Building Regulations Advisory Committee for Wales, which will each be added to Schedule 1 on 31st December 2011. This is because the Welsh Ministers (Transfer of Functions) (No. 2) Order 2009 replaces the current Building Regulations Advisory Committee with two separate committees (one for England and one for Wales) and this order will not come into force until 31st December 2011.
The Freedom of Information (Removal of References to Public Authorities) Order 2010 No. 939 removes references to public authorities from Schedule 1 of the Act, as on the date the order enters into force they will have either ceased to exist or ceased to meet the necessary criteria.
The Freedom of Information (Removal of References to Public Authorities) Order 2010 removes a number of public bodies from the scope of the Act. All but one of those bodies have already ceased to exist, so there will be no practical reduction in the scope of the Act. The exception is the Building Regulations Advisory Committee, which will cease to exist on the coming into force of the Welsh Ministers (Transfer of Functions) (No. 2) Order 2009 on 31st December 2011. This body will therefore be removed from Schedule 1 of the Act from that date.

Home Affairs Committee evidence on work of the Information Commissioner's Office

An uncorrected transcript of the evidence given by the Information Commissioner, Christopher Graham, and Assistant Commissioner, Jonathan Bamford, to the Home Affairs Committee on 9 March 2010 has been published.
Q4 Mr Winnick: Thank you very much indeed. In January of this year The Times noted that your office has limited resources, no powers to speed up the freedom of information process and that the Office is limited by not having the final say in freedom of information appeals. Do you recognise these constraints? Do you think they are unfair, or do you think the comments were unfair?

Mr Graham: I do not believe all I read in the newspapers. I would comment that all public authorities have limited resources. We are unusual in that there is some buoyancy in our resources, at least on the data protection side, because of the introduction of a tiered notification fee. The largest concerns now pay £500 instead of £35 and that is giving us more money to spend on the data protection side of the business. On the freedom of information side of the business we have had a spectacularly productive year. We are closing outstanding cases, getting through the backlog, and this is despite the fact that there is a great public appetite for using the Freedom of Information Act - good. It does mean that applications to the ICO are up by more than 20%, but case closures are up by more than 40%. This is not an organisation that is suffering from restraint. On powers, next month we see greatly strengthened powers on the data protection side - the introduction of civil monetary penalties, the ability to audit government departments without consent. There is an awful lot going on at the ICO.
...
Mr Graham: I am going to ask Jonathan to comment on the data protection side in a minute, but the great challenge when I took on the role of Information Commissioner at the end of June last year was to tackle the backlog in freedom of information cases, and this we are doing. This is a week of tremendous activity because we are determined to clear some of the old cases before the end of our performance year and I am confident that in our annual report we will be able to tell a very good story of the speeding up. Freedom of information cases, if they come to us, which is on appeal, are almost certainly going to be difficult and intractable, but what we have succeeded in doing over the past few months is to send a message to public authorities that we are on their case, and so there is no question of just refusing information because you think it will take the ICO a long time to get round to it. If we were in a vicious circle, we are now in a positive cycle where the public authorities realise that the ICO is very alert and they had better get on with it and that is having a very beneficial effect.
The Commissioner was also asked about the Private Members' Bill introduced by David Maclean MP, which sought to exempt Parliament from the scope of the FOI Act and create a new exemption for MPs' communications with public authorities, by David Winnick MP who was one of the MPs who tried to block the Bill in the Commons:
Q9 Mr Winnick: Mr Graham, Parliament makes its own rules and the electorate will decide, as always, accordingly, but if Parliament had gone ahead and exempted itself from the freedom of information legislation, which at one stage was a possibility - there was a Private Members' Bill - what do you think the effect would have been generally in the media and on the public?

Mr Graham: That is a very hypothetical question.

Q10 Mr Winnick: It is bound to be, is it not?

Mr Graham: The controversy was before my time. If we are going to re-run history, I suppose the great might-have-been is what would have happened if Parliament had been inclined to go with my predecessor's steer and had published the expenses under more general headings. This, of course, was before we knew about flipping of second homes, so the regime might not have lasted very long, but it was Parliament's determination to challenge the ruling of the Information Commissioner and to challenge the ruling of the Information Tribunal and take it to the highest court in the land, and the highest court in the land, as you know, turned round and said, "Publish the lot", which was more than the Information Commissioner had requested. If you say, therefore, "How would it have gone?", I think you would have drawn the wrath of the public upon yourself if you had exempted yourselves. I think it would have been better if, in not exempting yourselves, you had realised that this was real and the law that applied to everybody else also applied to Parliament, but it is easy to be wise after the event.

Mr Winnick: Wisdom, fortunately, prevailed and you know what happened.
 Read the transcript in full here.

Friday, March 26, 2010

ICO seeking comments on draft corporate plan 2010-2013

The Information Commissioner's Office is seeking comments on its draft corporate plan for 2010-13. The ICO's website states:
Our Draft Corporate Plan 2010-2013 outlines a three year view of what we need to do to deliver our mission and achieve our vision – upholding information rights in the public interest.

We are now seeking comments on our proposals to make sure we measure up to the expectations of our stakeholders. Please read the draft and if you wish e-mail comments to jonathan.kay@ico.gsi.gov.uk. In particular we would like to know:
  • Do you think the roles the ICO will play - enforcer and educator - are the right ones? (page 6, 7)
  • Have we missed any key audiences out? (page 4, 5)
  • Are our priorities right? Is there anything that shouldn’t be in there? Is there anything we’ve missed out? (pages 8-14)
  • Do you think our plans for how we’re going to develop our workforce and direct the ICO are appropriate? (pages 15-17)
  • Do you think our timescales are realistic and appropriate (pages 18-22)
  • How would you measure our success? (page 23)
The consultation period will end on Friday 16 April 2010
 The draft corporate plan 2010-2013 can be downloaded here

Thursday, March 25, 2010

Constitutional Reform and Governance Bill Lords debate

The Constitutional Reform and Governance Bill, which includes amendments to the Public Records and Freedom of Information acts, received its second reading in the House of Lords yesterday. The amendments implement the Government's response to the review of the 30 year rule year chaired by Paul Dacre.

The main effect of the amendments are:

(a) to cut the 30 year rule for the automatic release of old government records to 20 years, for some records

(b) to create a new exemption for communications between members of the Royal Family and public authorities

Move to a 20 year rule
The FOI Act allows requests for information to be made regardless of the age of the information concerned, so the old "30 year rule" no longer acts as a barrier to disclosure. However, it still operates as the point at which old government files, including cabinet papers, are proactively made public in The National Archives.

The transition to a 20 year rule will be phased in over 10 years by doubling the volume of records released each year. The proposed amendments would also lift some of the FOI exemptions after 20 years instead of 30 years as at present. Those that would be removed after 20 years are the exemptions for investigations (s 30), court records (s 32), audit functions (s 33), policy formulation (s 35), effective conduct of public affairs (s 36) - except in relation to Northern Ireland authorities, where the exemption would continue to apply for 30 years and legal professional privilege (s 42).

All other exemptions would continue for their present length of time. Those that would still operate for up to 30 years would be the exemptions for commercial interests (s 43), and devolved administrations (s 28). The honours exemptions would continue for up to 60 years, the law enforcement exemption for up to 100 years and remaining exemptions could apply indefinitely.

Royal Family
At present, information relating to communications with Her Majesty, other members of the Royal Family or with the Royal Household are exempt under section 37(1)(a) of the FOI Act. This exemption is subject to the Act's public interest test, which in turn is subject to the potential use of the ministerial veto.

The effect of the amendments would be:

(a) to exempt information relating to communications with the monarch, the heir to the throne and second in line to the throne for (i) 20 years or (ii) till 5 years after the individual's death, whichever is later. This exemption would no longer be subject to the public interest test.

(b) that communications with other members of the Royal Family would also be protected until 5 years after the individual's death or for 20 years, but in these cases the public interest test would apply. 

The main effect of the change is therefore to rule out the possibility of any disclosure on public interest grounds of information relating to communications between the monarch, heir or 2nd in succession until 5 years after the individual's death or 20 years, whichever is later.

During the debate, several Lords spoke about the amendments. In response, the minister, Lord Bach said:
The speech of my noble friend Lord Berkeley concerned one aspect of the review. The noble Baroness, Lady Young, asked why the change was being phased in gradually and wondered why it could not be done straight away. She asked whether we were covering our backs. The Dacre review recommended a phased approach to a reduction in the 30-year rule. Current estimates suggest that in central government alone departments hold at least 2 million files between 20 and 30 years old. I was asked about consultation on the transitional order. We will be working closely with central government and the wider archive sector to ensure that the transition to the new rule can be achieved in a fair and transparent manner.

The issue concerning the Royal Family was referred to by the noble Lord, Lord Pannick, and by my noble friend Lord Berkeley. This matter relates to the monarch herself and the next two in line to the throne. Just as it is a sovereign's right and duty to counsel, encourage and warn her Government, it is also the right and duty of the heir to the throne to be instructed in the business of government to prepare him for the time when he will be king. Both these sets of rights and duties rely on well established conventions of confidentiality that were never meant to be superseded by the Freedom of Information Act. Therefore, we think that we have approached this part of the Dacre review in the right manner.
Read the debate here.
Latest copy of the Bill here and Explanatory Notes here.

Wednesday, March 24, 2010

Straw questioned on veto and the effect of FOI on advice to ministers

Secretary of State for Justice, Jack Straw, gave evidence to the Justice Committee on 10 March 2010 on the work of the Ministry of Justice. He was asked about use of the veto in relation to cabinet minutes and the effect of FOI on advice to ministers.
Q94 Chair: Thank you very much. I am going to turn to a number of wider issues. I am going to start with a Freedom of Information issue. There have only been two occasions when the Information Commissioner has recommended the disclosure of Cabinet minutes. One was Iraq. The other was devolution last December. You told the House that disclosure of the devolution papers was not in the public interest because it undermined collective responsibility and effective government. That sounds to me like an argument that you would use against ever disclosing any Cabinet minutes. Were you using the power that you had to veto the disclosure of specific Cabinet minutes to take up a position, which the legislation does not have, that no Cabinet minutes shall ever be disclosed by the Information Commissioner's requirement?

Mr Straw: No, most certainly I was not. That would be contrary to the structure of the Act and an abuse of the discretion that is given (in this case to me) under section 53 of the Act. In each case you have to judge the merits or demerits of a section 53 decision strictly on the basis of the information which it is proposed by the Commissioner or the tribunal to release at that time, so this is not remotely a way of bypassing the legislation. I have set out in both cases very detailed explanations about why I reached those decisions, and we followed strictly the non-statutory procedure, with consultation with Cabinet colleagues and so on in advance. There has been a high level of consideration given to this, including by meetings of the Cabinet, with the full papers available to members of the Cabinet, and on the basis of that consultation I formed those judgments. I would just make this wider point: section 53 is there, as I have said in the House on a number of occasions; it is a fundamental part of the architecture of the Freedom of Information Act. The Act would not have come in without section 53 being there because it is there as a balancing measure for what are otherwise the most stringent and powerful Freedom of Information provisions of almost any jurisdiction in the world. I do resist very strongly those who are now seeking to cherry-pick the Freedom of Information Act and say that requesters are entitled to use, say, sections 35 and 36, and the Commissioner and the tribunal are entitled to come to their decisions, but ministers should go into a self-denying ordinance about ever using section 53. That is not how the Act is established. I can say this without any challenge: the Government would not have recommended the Act to the House, following a series of changes greatly to strengthen its provisions, if section 53 had not been there.

...
Q99 Chair: Let me turn it round and say to you: can you think of a Cabinet discussion that you have taken part in in recent years which, if the Information Commissioner required you to disclose it, you would not veto?

Mr Straw: If I may say so, I am not going to get into the realm of speculation. It is the case, by the way, that one document relating to a Cabinet sub-committee, which was actually the agenda (agendas can be quite revealing), has been released. There have been relatively few requests, as we have said, which have gone to the Commissioner. The other side of this is that a good deal of inter-ministerial correspondence has been released.

Q100 Chair: I cannot escape the conclusion that there are no Cabinet minutes whose disclosure you would not veto.

Mr Straw: That is a wrong conclusion. The conclusion, obviously, Chairman, you decide to come to is a matter for you, but I am just telling you, as the person who has had to exercise this discretion on two occasions, that is wrong. It is not what the law says and it is not what I have said in very detailed explanation. I also just repeat the point, and you may take a different view about this (I hope you do not), that section 53 is an inherent and integral part of the whole architecture of the Act. Even with section 53, this is still amongst the strongest and most incisive freedom of information legislation in the world, contrary, I may say, to those who continued to claim, including people from your benches, that all we were doing was putting into statutory form the previous freedom of information code.

Q101 Mr Tyrie: We were both supporters and remain supporters of FOI. I have had expressed to me quite a number of concerns by officials, informally, that FOI gets in the way of enabling them to offer free and independent advice to ministers; it inhibits them from writing down things from time to time. Is that a problem that has ever been brought to your notice? Do you think there is something we should do about it?

Mr Straw: It is certainly a comment that has been made to me. I do not, myself, feel, in my Department, that officials have been reluctant to say what they think about issues ---

Q102 Mr Tyrie: On paper.

Mr Straw: On paper. It has certainly not made me reluctant to say what I think about issues on paper, because my view is that if you are confident about the reasons that you are offering (in this case a minister is offering) about why they are either going to accept or modify or reject advice which is put forward, then you should be ready to justify that. That is not, by the way, a green light for saying this should be made available on the intranet or internet that day, or even in anything less than what will now be 20 years. Mr Tyrie, it is quite often said that it is an inhibition. Bear in mind that there is a difference in terms of the kind of sensitivity of most of the work in my Department compared to some other key departments.

Q103 Mr Tyrie: I am asking the question in the round, with your constitutional hat on.

Mr Straw: Indeed. I just wanted, as it were, to make your point. When I was at the Foreign Office (I was only there for 18 months after the FOI Act came into force) there was, I think, that sense around, and I have heard that said in respect of other departments handling more sensitive material - for example, in the Treasury. I am anxious here to not either dismiss these opinions, which you have also received, nor to say they are fact. I think, therefore, now that you have raised it, what we need to look at is whether there would be a way of having an independent scrutiny by people who were neither parti pristo ministers or prospective ministers, nor to the Information Commissioner and the Freedom of Information campaigners, who could both look at a series of submissions and compare them with equivalent submissions made before the Freedom of Information Act became law, because it came into force in 2005. So to look back, before it was, as it were, even a gleam in the eye ---

Q104 Mr Tyrie: So get someone in to take a look at this?

Mr Straw: To take a look at this, and also to talk to officials and to try to come to a judgment about that. I will try and get that going.

Thursday, March 18, 2010

New guidance for access to health records requests

The Department of Health has updated its guidance on dealing with access to health records requests:

Guidance for access to health records requests (22 February 2010)

This supersedes Guidance for access to health records requests under the Data Protection Act 1998 (2003).

Wednesday, March 10, 2010

Question in the Lords on Government response to review of 30 year rule

There was a short debate in the Lords on 9 March 2010 on the Government's response to the 30 year rule review, following a question by Lord Lester.
Asked By Lord Lester of Herne Hill

To ask Her Majesty's Government what is their response to the recommendations in Review of the 30 Year Rule, chaired by Paul Dacre and published in January 2009.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, the Government published their response to Review of the 30 Year Rule to Parliament and the general public on 25 February 2010. A copy of the response is available in the Library of the House. The Government also tabled an amendment to the Constitutional Reform and Governance Bill on the same day to bring forward the legislation necessary to implement the change to the 30-year rule and other key proposals set out in the response.

Lord Lester of Herne Hill: My Lords, I greatly welcome the Government's response, both in their paper and in securing amendments that we hope will survive any wash-up and become law. My concern is whether the Government, having willed the end, have also willed the means. The Dacre report, as the Minister will know, recommended that the Government should make adequate additional provision in the 2011 to 2014 period and subsequent Comprehensive Spending Reviews for all records-related activities in the way that was spelled out. As I understand it-the Minister will correct me if I am wrong-the Government have rejected the notion of any additional resources. Will that not undermine the whole operation?

Lord Bach: My Lords, first things first. I am grateful to the noble Lord for his support. This is in a Bill that is to come before this House in a couple of weeks' time and then we will see what happens to it. I have no doubt that all its parts will be widely accepted around the House-certainly this part will. As to the future, we will see. We have made an impact assessment, which estimates a total cost of between £50 million and £80 million over a 10-year transition period. We shall work with central government and the wider archive sector to ensure that transition to the new rule can be achieved in the most cost-effective manner.
Full debate in Hansard.

Monday, March 08, 2010

Scottish Information Commissioner challenges public authorities to "think FOI"

8 March 2010
The Scottish Information Commissioner today [8 March 2010] told Scotland's public authorities that they must "think FOI" if they are to minimise the impact of freedom of information requests. The call coincides with data, published in the Commissioner's 2009 Annual Report, which shows that the number of FOI appeals made to the Commissioner increased by 15% over the last year, and that two-thirds of the decisions he issued found that a public authority had breached FOI law in some way.

Marking the launch of his 2009 Annual Report, Kevin Dunion, the Scottish Information Commissioner, said:

"2009 saw a significant increase in the number of appeals I received. The effect of the recession on public spending may well mean even more requests for information being made by people concerned about public authority decisions which affect services, funding or jobs.

"It is therefore essential that public authorities take steps to make sure they can more readily comply with FOI, giving people the information they want, while minimising the impact on public authority resources. Key to this is assuming information will be released. When staff create information, they should be aware that their reports, emails and notes may one day be released under FOI. All too often, a public authority's reluctance to disclose is less about the actual content of the information, and more about the manner in which staff have expressed themselves. By encouraging staff at all levels to "think FOI", public authorities can encourage a more professional approach to internal, as well as external, communications – making it far easier to contemplate release."

Alongside the 15% increase in applications, the Commissioner's Annual Report also reveals that:

  • 73% of the applications received by the Commissioner in 2009 came from members of the public;
  • the Commissioner found that a public authority had breached the law in some way in two thirds of the appeals that were made to him;
  • the average age of cases being dealt with by the Commissioner continued to decline during 2009, meaning that individual applications are being resolved more quickly. The average age of cases closed during 2009 was 5.3 months, down from 6.7 months in 2008 and 10 months in 2007;
  • enquiries to the Commissioner's Office from people seeking advice on using FOI also increased significantly, with a 16% increase on 2008 volumes.
The 2009 Report, which also celebrates the first five years of FOI in Scotland, is being presented electronically for the first time through an interactive website. Additional features in the report include video commentary, interactive tables, user stories, and detailed chronologies charting the development of FOI in Scotland over its first five years. Hard copies of the report will be available by contacting the Commissioner's office on 01334 464610.

The full report can be viewed online at www.itspublicknowledge.info/ask

Thursday, March 04, 2010

FOI Disclosure Stories February 2010

Regulator slammed over GCSE marking - Press Association 28/02/10
“GCSE science pupils may have missed out on top grades after the exam regulator made a late change to marking boundaries to avoid a row over grade inflation, it has emerged. Documents released under the Freedom of Information Act reveal that last summer Ofqual, the independent body set up by Schools Secretary Ed Balls, was given predictions of a big jump in science results. On August 10, just two days before the grades were finalised, Ofqual chief executive Isabel Nisbet wrote to exam board officials saying the increases would be ‘difficult for the regulators to justify and for all of us to defend’. It was agreed that the independent awarding bodies that set and mark papers should ‘change their grade boundaries in order to improve the national position’.” See also 'Move the goalposts and nobody can score' The Sunday Times 28/2/10

BT 'responsible for own £8.8bn pensions gap' - FT 28/2/10
"BT’s £8.8bn pension deficit is almost entirely of its own making because it failed to make adequate contributions and took big risks with its investment strategy, according to documents submitted by its rivals to Ofcom, the regulator... Mr Ralfe also found, through a freedom of information filing, that at privatisation in 1984, BT already had a pension shortfall of £626m. BT did not take steps to close the gap, he said. Had it done so by investing funds in risk-free, index-linked gilts it would have £4.5bn more in its pension fund than it does. The research suggests BT’s pension scheme, which was conservatively invested at the time of privatisation, with a quarter of assets in bonds, took more risk over time."

More than 17,000 episodes of troops going Awol since 2003 - Independent 20/2/10
"British soldiers have gone on the run from their posts on more than 17,000 occasions since the start of the Iraq war, The Independent can reveal. As resources for the armed forces remain stretched to cope with Britain's commitments in Afghanistan, official figures from the Ministry of Defence (MoD) show that there were more than 2,000 cases of soldiers going absent without leave (awol) last year, with 17,470 incidents recorded since the Iraq invasion in 2003. The internal Government statistics, released to The Independent under the Freedom of Information Act, show that 375 soldiers remained at large at the end of last year, although MoD sources insisted that the figure has since fallen."

University buildings 'unfit for purpose', database reveals - Building Design 16/02/10
“University buildings across the country were condemned as “unfit for purpose” or “at serious risk of major failure” in a secret database obtained by the Guardian newspaper. The database was compiled two years ago by the Higher Education Funding Council for England to allow universities to compare the quality of their estates with their rivals. The Guardian, which revealed its findings today, spent two years fighting for access to the report using Freedom of Information legislation.” See also 'Cracks show at universities' The Guardian 16/2/10

Trusts 'failing over safety alerts' - Loughborough Echo.net 16/02/10
“Hundreds of health trusts have failed to take action on patient safety alerts issued to tackle problems which cause injury or death, a report has said. The study by Action Against Medical Accidents (AvMA) found that 300 trusts in England, around three quarters of the total, had not complied with at least one patient safety alert although the deadline had passed. It obtained the data, which covers 53 patient safety alerts issued between 2004 and 2009, from the Department of Health via a Freedom of Information request in December. The alerts are issued by the National Patient Safety Agency (NPSA) and require NHS trusts to take action on certain problems. They included one on injectable medicines which was issued after 25 deaths and 28 cases of serious harm were reported between January 2005 and June 2006.”

Primary Care Trusts Cut Funding For GP Out-Of-Hours Services - Medical News Today 11/02/10
“Primary care trusts are cutting investment in out-of-hours services by driving down contract payments, in a move that has raised concerns over its impact on the quality of care. Almost two-thirds of those PCTs able to provide details on contract retendering said they were reducing the amount they pay to out-of-hours providers, a Pulse investigation reveals. The GP committee of the BMA said the contract data, released to Pulse under the Freedom of Information Act, demonstrated the pressing need for a ‘reprioritisation' of investment in out-of-hours care.”

Heathrow airport expansion e-mails investigated - BBC 7/2/10
"The Department for Transport (DfT) is facing an "intensive investigation" over claims e-mails about the expansion of Heathrow Airport were deleted. The exchanges with airport operator BAA were requested by a Conservative MP under the Freedom Of Information Act, who said she then spotted gaps. The Information Commissioner's Office (ICO) confirmed it would examine the 2007 e-mails about the third runway.”

Complaints of prison racism rise among staff and inmates - The Guardian 07/02/10
“Prison officers are more than twice as likely to be reported for racism than prisoners, according to new government figures showing alleged racist incidents across the prison estate have risen by a quarter. Ministry of Justice complaints data reveals a steady rise in alleged racist incidents at the 139 prisons in England and Wales. The figures, released under the Freedom of Information Act, are likely to add to concern over extremism in prisons. They come as prison staff express concern over growing sympathy for the British National party among colleagues. The figures show there have been 46,000 complaints by staff and prisoners that were categorised as racist since 2006. By 2008 there were 14,191 complaints about alleged racism in prisons, a 25% increase on 2006, when there were 11,389.”

Prince Charles' aide accused of new bid to wreck plans for Chelsea barracks - Daily Mail 6/2/10
"The Prince of Wales was facing fresh accusations last night of sabotaging the controversial £1billion redevelopment of Chelsea Barracks. It was revealed that his most senior aide took part in a key discussion with the owners of the site  -  members of the Qatari royal family  -  and councillors from the Westminster planning authority. Just days later an ultra-modern plan for the site, designed by leading architect Lord Rogers, was scrapped...Last night Clarence House denied that Sir Michael voiced any opinions at the meeting. It insisted he rang off when he realised the nature of the meetingand that it was 'not appropriate' for him to be involved."

Disabled students wait for specialist equipment grants - BBC 5/2/10
"Almost 12,500 students in England are still waiting for grants to pay for specialist equipment, figures from the Student Loans Company show. The statistics reveal two thirds of students with a disability or special needs are still waiting for money. The figures were obtained by the Conservatives following a Freedom of Information request...Of the 19,006 eligible DSA applications, only 6,507 have been fully processed and approved by the SLC. This means that, almost four months after term started, only 34% of eligible applications have been processed."

MPs book House banqueting rooms for lobbyists to entertain clients - The Times 5/2/10
"Parliament’s exclusive banqueting facilities have been made available by MPs to outside bodies with which they have financial links. MPs from all parties booked dining rooms on behalf of organisations from which they received payments in recent years, information released yesterday shows. The list of bodies using the facilities, which are available only if booked by Members, also reveals the extent to which lobbyists use the Commons to entertain clients."

British government ordered to reveal Iraq war legal advice - Belfast telegraph 02/02/10
“The British government's most senior legal advisers broke the law by refusing to tell The Independent who was given crucial advice about the treatment of prisoners during the war in Iraq, the Freedom of Information watchdog has ruled.”

Reveal Ashcroft's status, officials told - Independent 1/2/10
"Cabinet officials have been told they must end the secrecy surrounding a promise made a decade ago when Michael Ashcroft, the billionaire vice-chairman of the Conservative Party, was awarded a life peerage. As a condition for taking his place in the House of Lords, Mr Ashcroft promised to end his tax-exile status and become a UK resident, but in the intervening 10 years, he has refused to say whether he has kept that undertaking...But the Information Commissioner, Christopher Graham, has now ordered the Cabinet Office to release the information it holds about the private exchanges that took place before Lord Ashcroft was made a peer."


Regional

Shame of no-show Welsh ambulance patients - Daily Post 26/02/10
“Thousands of patients weren’t home when ambulances or taxis turned up to take them to hospital appointments. The Welsh Ambulance Service NHS Trust revealed that on average in Wales 2,870 patients a month aren’t home or have made alternative arrangements to get to hospital when ambulances turn up. The staggering figure was released by the ambulance trust after a Daily Post Freedom of Information request, following a string of complaints about ambulances or taxis being late or failing to turn up. At present the ambulance trust’s Patient Care Services doesn’t have a computerised booking and planning system and can’t say how many patients missed appointments because of late ambulances.”

Ten wasted years: Revealed...scathing report on the Sugden Mill fiasco - Halifax Courier 17/2/10
"Council officials have wasted ten years on a stalled multi-million town-centre scheme, according to an explosive new report. Brighouse could be enjoying new shops and a swimming pool if the Sugden Mill project had been handled better, says the internal council dossier. Details secured by the Courier under the Freedom of Information Act show the council squandered a decade on plans and planning inquiries – and was finally forced to admit defeat after an ill-prepared £3.7 million compulsory purchase order...The report blasts the council for failing to put any formal arrangements in place to manage the project and said there was no evidence that legal or financial advice was sought."

Sex offenders in the Thames Valley reported missing - BBC 15/02/10
“Six sex offenders, including four paedophiles, have been missing from the Thames Valley for up to eight years, figures obtained by BBC News reveal. Three are thought to be abroad, the figures released under freedom of information laws show. All of those missing pose a low risk of reoffending, a Thames Valley Police spokeswoman said. She said the force could never guarantee offenders would not re-offend while in the community.”

Coventry Refugee Centre fears over surge in child asylum seekers - Coventry Telegraph 09/02/10
“The number of lone children seeking asylum in the West Midlands has rocketed by 700 per cent in six years. In 2002 there were 42 children receiving care from councils in the region, but that figure had risen to 306 by 2008. The figures were revealed through a Freedom of Information request amid claims that local authority budgets were under strain to look after the children who had fled to the UK from countries such as Iraq and Afghanistan.”

Cops swell DNA database by 56k in three years - Daily Gazette 01/02/10
“Essex Police has taken DNA samples from more than 56,000 people in three years, newly released figures show. The force collected DNA from 17,592 last year, down from 18,432 in 2008 and the 20,015 samples taken in 2007. The figures only emerged after new Chief Constable Jim Barker-McCardle overturned a decision to block a Freedom of Information Act request. Essex Police was one of three forces in England and Wales that refused to answer the request, leading to Mr Barker-McCardle apologising last month. He said that while staff had been right to refuse the request because of the number of hours it would take to respond, the sensitivity of the subject meant he would like the information to be released.”


Scotland

Salmond’s secret talks on Scottish Water sell-off - The Herald 28/02/10
“First Minister Alex Salmond and finance secretary John Swinney have held secret meetings about the possible sale of Scottish Water with the Australian company which owns Thames Water. An inquiry using Freedom of Information laws has disclosed that Mr Salmond and Mr Swinney held at least two meetings with the Australian banking group Macquarie dating back as far as 2008. The meetings cast further doubt on the SNP government’s insistence that the sell-off of Scottish Water is not on the agenda. The SNP has recently been embroiled in controversy over the future of Scottish Water. The Sunday Herald has reported that the Scottish Futures Trust is looking at alternative models for future ownership of Scottish Water and is considering whether it should be sold off. Although the SNP has insisted that privatisation is not an option, it is now clear that two of the country’s most senior ministers were exploring a change in ownership in parallel to the review.”

Salmond accused of trying to rig independence referendum – The Times 22/02/10
“The Scottish government was accused today of trying to rig an independence referendum after it emerged that the Electoral Commission raised concerns about the planned running of the plebiscite.(…) E-mails between the government and the commission obtained by the BBC under freedom of information law reveal the commission’s concerns over the wording of the proposed question to be put to the electorate and fears that the timescale was too short. The commission also expressed concern over the proposed new body to oversee the vote: “There seems little regard to the remit and role of what the Scottish Referendum Commission would actually do,” it stated.”


Natural heritage body suffers crisis of confidence - The Herald 21/2/10
"The Government agency tasked with protecting Scotland’s precious wildlife and landscapes is in deep trouble, according to internal documents obtained by the Sunday Herald. Scottish Natural Heritage (SNH) has suffered a severe and escalating crisis of confidence and has lost the support of its staff, the papers show. There is growing concern that nature conservation is slipping down the agenda of senior managers and Scottish ministers. The latest survey of SNH’s 900 staff reveals that only a third of them have confidence in the organisation’s future, or in its top management. And only a little more than half believe their employer deserves their loyalty...The results of the survey, conducted in 2008, were released by SNH last week under freedom of information legislation."

SPT chief executive and vice chair resign - BBC 18/2/10
"Scotland's largest transport authority has been hit by a third resignation amid an ongoing row over expenses. South Lanarkshire Labour councillor Davie McLachlan stepped down as vice chair of Strathclyde Partnership for Transport (SPT) on Thursday. He follows Ron Culley who resigned earlier as chief executive, and Glasgow Labour councillor Alistair Watson who stepped down as chairman on Monday. Financial watchdog Audit Scotland is to investigate expense claims at SPT. The row which led to the resignations flared after expense claims from SPT officials were reported following a Freedom of Information request."

Council's 'face £300million in cuts' - STV News 10/2/10
"Councils are facing cuts of £300million next year, according to Labour. Finance Secretary John Swinney will set out the £11.8billion split on Wednesday that Scotland's 32 councils will each get as part of next year's Budget. But as public spending tightens, Labour say responses to a Freedom of Information request reveals cuts of almost £300million across councils in 2010/11...Labour's figures indicate that cuts are planned in the number of teachers, classroom assistants, janitors, workshop technicians and cleaning staff. Library opening hours, roads maintenance, resurfacing and gritting budgets are also in line to be reduced. South Ayrshire Council is looking at "reducing the workforce" to help find savings of £7million, while Highland has set a savings target of £11.49million in education and £5.01million in social work. But the claims were branded "factually incorrect and grossly hypocritical" by a spokesman for Mr Swinney."

International


Poland accused over rendition - FT 23/2/10
Poland was involved in the CIA's rendition programme in which terrorism suspects were transported, according to flight records obtained by human rights groups and made public yesterday. Records obtained from Polish air traffic control under a freedom of information request by the Helsinki Foundation for Human Rights in collaboration with the Open Society Justice Initiative indicate that at least six US flights landed at Szymany airfield, which is close to the Kiejkuty military base, suspected of being the location of a CIA detention site where prisoners were held in secret.Warsaw has for years denied involvement in the US programme.

More than 65,000 US flights should have been grounded newspaper study finds - The Times 3/2/10
"More than 65,000 flights have taken off from US airports in the past six years when they should have been grounded because of incomplete or improper maintenance, according to an investigation that sheds new light on hundreds of deaths including that of a mechanic “ingested” by a jet engine... The Air Transport Association, which represents the largest American airlines, claimed that its members had not suffered a single fatal accident because of shoddy maintenance since January 1, 2001. However, the newspaper’s analysis of National Transportation Safety Board data obtained through the Freedom of Information Act found that maintenance was a “cause, factor or finding” in 19 accidents since that date."

Wednesday, March 03, 2010

MoJ changes to Freedom of Information statistics

The Ministry of Justice has published details of the changes it plans to make to the FOI statistics published in the 'Annual report on freedom of information in central government'.

These changes relate to concerns that the Campaign for Freedom of Information has been raising with the MoJ for some time (see 'Delays in investigating Freedom of Information Complaints') and which it recently highlighted in a response to a consultation by the UK Statistics Authority.

The Campaign has been concerned that:

• published statistics on time taken to carry out public interest test (PIT) reviews present the most delayed cases as a single class of those taking an extension of “more than 40 working days” with no further breakdown of the actual extensions involved.

• statistics on the time taken for internal reviews (IRs) present the most delayed cases in a single class of those taking “more than 60 working days”, again with no further breakdown

• cases which are not complete by February of the following year are not included in either the current year’s statistics or those relating to the following year, so that many of the most delayed cases are not dealt with in the statistics at all.

The new MOJ statistical note states:
5. Currently the freedom of information monitoring statistics report on those public interest test extensions and internal reviews where the initial request was first received during the year, and the PIT or IR had been completed by the time the annual statistics are collected (usually in the February of the following year).

6. Data on the durations of PITs and IRs are collected in a number of time bands (e.g. “5 working days or less”, “between 6 and 10 working days”, etc).  The uppermost time band for the duration of PITs is “more than 40 working days”, while the uppermost time band for the duration of IRs is “more than 60 working days”.  No data is gathered on the durations of those PITs and IRs which had not been completed by the time the annual statistics are collected.

7. The specific changes that will be made to the durations data are:

   a) Further time bands for durations of PITs and IRs will be added, so that the uppermost time band in each case is “more than 100 working days”.

   b) New statistics will be collected from each monitored body on the eventual durations of those PITs and IRs which were recorded as being ongoing in the previous year’s annual statistics.
The Campaign welcomes both changes. However, it remains concerned that, despite the additional information, details of the most seriously delayed cases will still not be adequate. One internal review is known to have taken 29 months. Even under the new statistics, such extreme delays will not be properly identified but merely included in the category of cases taking more than 100 working days.

Former Commissioner Richard Thomas gives evidence on s.77 and UEA climate data

Former Information Commissioner Richard Thomas has given evidence to the Science and Technology Committee's inquiry into the disclosure of climate data from the Climatic Research Unit at the University of East Anglia.
Q56 Chairman: We welcome in our second panel, seamlessly, Richard Thomas, the former Information Commissioner. Thank you very much indeed for joining us this afternoon. You recommended that the Freedom of Information Act 2000 should be amended so that a prosecution could be brought within six months of evidence of the offence coming to the attention of the Commissioner’s knowledge. We have heard reference to this in the previous panel. Why do you consider that such a change should be made?

Mr Thomas: Thank you for your welcome, Chairman. I am happy to assist the Committee to the best of my ability. If I could answer your question in context, I have put a written submission to the Committee which, I think, is on your website. I set out that I might be able to help you with the rationales and the policy objectives of the legislation and its application in practice. I have outlined how the Act works and its application in general and in particular. This situation we are dealing with now may well engage the Environmental Information Regulations as much as the Freedom of Information Act, but they are broadly similar, with some important differences. I concluded my submission to you by making three suggestions. One was that the six-month limit for criminal prosecution under section 77 should be changed. That was your question. Secondly, I made some suggestions in relation to the Muir Russell review and, thirdly, suggested there might be more proactive disclosure of publicly funded research. On the question of the six-month limit, I set out in my memorandum at section 77 of the Act and the corresponding regulation 19 in the Environmental Information Regulations the only part with a criminal sanction and, in my view, a very important part of legislation, designed to prevent the destruction, the alteration, the suppression of information once a request has been made, but I set out in my submission there are three really quite key issues here. First of all, it is only information to which the applicant is entitled; so it is only if none of the exemptions, for example, apply and information would have been discloseable under the legislation that the offence is committed; secondly, there has to be the intention of preventing disclosure under the legislation, and proving intent in this situation is always going to be difficult; and, thirdly, because of the interaction with the Magistrates Court Act, any prosecution must be brought within six months of the offence being committed, and I think it is that which perhaps caught the public’s attention towards the end of January, that latter part; but I made the point in my submission that this is not a new issue, in fact, it surfaced during a debate on the Coroners and Justice Bill in 2009 when certain amendments to information laws were being made at that time, and I outline in my submission how Lord Dubs had tabled an amendment in the House of Lords during the course of the consideration of that Bill proposing that, as in other areas of regulatory life, the six-month limit should be changed so that it is when it comes to the attention of the Commissioner, or the prosecutor. The Commissioner is the prosecutor in this particular case.

...
Q70 Ian Stewart: That leads me to my next question. It is quite clear from the email exchanges that these scientists were exasperated. Their argument was that they just wanted to get on with their job, and one of the plaintiffs says that he did not want to deal with the hassle, he just wanted to do his job. Do you have any sympathy with the exasperations of scientists at CRU?

Mr Thomas: I think one can understand what I might call the human dimension of this, and sympathy is not the right word in this context, but I can understand perhaps why people sometimes felt exasperated. We came across public authorities in Whitehall, local authorities up and down the country with this sense of exasperation and being on the receiving end of large numbers of quite difficult cases. There is doubt about that; I can see that. At the same time, the legislation is there - there is the right to know - and in many cases the simplest approach, particularly where requests tend to generate either a defensive attitude or place a great burden on the public authority, is proactive disclosure in the first place. I often use what I call the Crown Jewels approach. Public authorities ought to decide what really has to be kept away from the public. If it is particularly sensitive or there is a good reason for withholding it, fair enough, but where there is no good reason for withholding information, then why not proactively disclose it and avoid the hassle of large numbers of requests?

Q71 Ian Stewart: We now understand the impact of hassle, as it was put by one of the correspondents.

Mr Thomas: Can I add one comment, if I you do not mind, Mr Stewart. I do not think that hassle, or whatever word we are going to use, justifies the deliberate destruction of requested information.

Q72 Ian Stewart: Can you let me ask the question and then you may come to it: because that is at the heart of the next part of the question that I want to ask you. Do you consider that what we have seen at CRU is muddle, irritation under pressure, rather than the intention to breach the Act?

Mr Thomas: I simply do not have nearly enough inside information; I have no inside information, I cannot answer that question. All that I can say is that some of the material that has surfaced in the media and elsewhere, where phrases like "hiding behind" or "please delete this particular email" to any Commissioner – myself when I was Commissioner, to the current Commissioner – is something which prima facie needs investigation because that section 77, which we discussed earlier, is a very important part of the Act. When it first came into force there were many headlines, "The shredding machines at Whitehall are working day and night". We asked for allegations to come forward; none came forward at all. It is a very serious part of the Act, virtually every public authority stresses to its staff "Do not destroy information when it has been deleted." I make no allegations whatsoever against the university; all I am saying is that in some of the emails that have surfaced there is prima facie evidence which I think would have required investigation had it not been for the six month limit.
An uncorrected transcript of the evidence is available here.
The memorandum submitted to the Committee by Richard Thomas is here.