Thursday, September 29, 2011

Central government FOI statistics Apr-June 2011

The quarterly FOI statistics for central government have been published for the period April to June 2011. The figures show that the Cabinet Office, which, along with Ministry Defence, was required to sign an undertaking by the Information Commissioner earlier this year to improve compliance, answered less than half of requests within 20 working days.

Ranked in order of their performance in meeting the 20 working day deadline (number of requests received in brackets), the list of departments is as follows:

Department of Health 99% (417)
Attorney General's Office 98% (42)
Department of Culture Media and Sport 96% (195)
Northern Ireland Office 95% (61)
Department of Work and Pensions 93% (763)
Scotland Office 91% (54)
Home Office 90% (786)
Department for International Development 89% (122)
Department for Transport 88% (710)
HM Treasury 86% (480)
Communities and Local Government 85% (221)
Department for Education 84% (245)
Department for Environment Food and Rural Affairs 83% (150)
Wales Office 79% (47)
Department of Energy and Climate Change 77% (115)
Ministry of Defence 76% (830)
Ministry of Justice 75% (901)
Department for Business Innovation and Skills 74% (256)
Foreign and Commonwealth Office 70% (344)
Export Credit Guarantee Department 69% (36)
Cabinet Office 48% (349)

A number of departments that were on the ICO's first list of bodies monitored between 1 October and 31 December 2010, have improved their performance. These include the Department for Work and Pensions, Home Office and Scotland Office. One of the ICO's criteria for selecting bodies for monitoring is that "less than 85% of requests are receiving a response within the appropriate timescales".

The statistics can be downloaded as a pdf, or in Excel or CSV format.

Wednesday, September 28, 2011

Commissioner marks International Right to Know Day

News release: 28 September 2011
Transparency speech marks International Right to Know Day

‘Transparency is not just about what the authorities choose to reveal to citizens; but what citizens have a right to ask to see,’ Information Commissioner, Christopher Graham, said today, in a speech to mark International Right to Know Day 2011.

Information Commissioner, Christopher Graham, said:

“We need to ensure that there is no gap between the right to know rhetoric and the reality of a ‘don’t tell ‘em’ mentality that all too frequently frustrates the citizen.

“I believe that an active and independent ICO can help make a practical reality of the transparency agenda. Not just supporting the direction of travel, but helping to reach a common goal. Delivering a Right to Know 2.0. The reality, not just the rhetoric. The difference between seeing it through - and seeing through it.”

In the course of the video address broadcast on YouTube, the Commissioner set out how the Information Commissioner’s Office (ICO) is already a key player in delivering an effective Right to Know; how his responsibility for both the right to know and the right to privacy enables the ICO to assess where the public interest lies when rights appear to be in conflict; and why the ICO should be an essential partner in delivering the much trumpeted transparency agenda through to practical reality.

Mr Graham also today launched a public consultation on the content of publication schemes – the documents that specify what information public authorities must release proactively.

Speaking about the consultation, he added:

“We will want feedback, not just from public authorities but from members of the public. Our questions will include asking what further classes of information or further detail can be included in publication schemes? And how should publication schemes evolve in light of new technologies?”

Other topics covered in the Commissioner’s speech on the state of information rights in the UK include:
  • New technologies – the Commissioner says it is ‘vital that the FOI regime responds to the new demand for information online.’
  • Unstructured data – Mr Graham states that unstructured information – such as emails and memos – are ‘important in delivering accountability and holding public authorities to account.’
  • Service delivery changes – The Information Commissioner warns that ‘contracting out and the involvement of new providers…must not reduce the citizen’s right to know.’
  • The ‘balance’ between transparency and privacy – Mr Graham makes clear that ‘just saying there’s a balance doesn’t itself strike the balance. The decisive factor must be a sober assessment of the competing interests...and privacy shouldn’t always be claimed as a barrier to transparency.’
  • Anonymisation – The ICO is developing a code of practice on anonymisation under section 51 of the Data Protection Act.
  • Protection of Freedoms Bill – the Commissioner gives the ICO’s view on the information rights aspects of the proposals, including DNA profiling, CCTV and vetting checks.
Press release here
Transcript of the Commissioner's speech here (pdf).
Consultation document on revising publication schemes here (pdf).

Tuesday, September 27, 2011

Commissioner orders extracts from note of Blair/Bush telephone discussion to be disclosed

The Information Commissioner has ordered the Foreign and Commonwealth Office to disclose extracts from a note of a telephone conversation between Tony Blair and George Bush on 12 March 2003, shortly before the decision to go to war against Iraq (Decision Notice FS50341647). The Commissioner found that the exemptions for international relations (sections 27(1)(a) and 27(2)) and ministerial communications (s.35(1)(b)) applied to the information. In respect of information supplied by President Bush to Prime Minister Blair, he found the public interest in withholding the information outweighed the public interest in disclosure. However, for information that wasn't obtained from the US, which concerned the Iraq issue only from the UK perspective, the public interest favoured disclosure.
83. After careful consideration, and in circumstances where the respective public interest considerations are very finely balanced, the Commissioner is of the view that the public interest in maintaining the section 27 exemption to protect the confidentiality of the information provided by the US (in the form of information provided to Mr Blair by President Bush), outweighs, by a significant, but by no means overwhelming margin, the public interest arguments in favour of disclosure of this information, persuasive and weighty though they are.

84. The Commissioner emphasises that his decision with regard to the information contained in the document consisting of information obtained from a State (US) other than the United Kingdom, has been made because the Commissioner believes that the short-term and specific public interest benefits of releasing this particular information (important though they are) would be outweighed by the risk posed to the long-term integrity and maintenance of the relationship between the UK and the US, particularly that between Prime Minister and President.

85. However, the strength of the public interest attached to this specific information is such that the Commissioner considers that the public interest balance (assessed under either section 27 or section 35(1)(b) must be determined differently with regard to the information contained in the document which is not information obtained from the US (i.e. information which does not disclose the confidences given by President Bush, or reveal, directly or otherwise, the confidential information provided to the UK in the telephone discussion.) Once that information (the majority of the information contained in the document) is protected via appropriate redactions, the public interest arguments for disclosure of the remaining information at least equalise (and in the Commissioner’s view appreciably exceed) the public interest arguments in favour of maintaining the section 27 or section 35(1)(b) exemptions.

86. The Commissioner considers that such was the gravity and controversy of the decision by Prime Minister Blair to commit the country to the military action taken in Iraq, then any information which might provide the public with an insight or awareness of the Prime Minister’s thinking during the critical period when the decision was finalised, and its implications for the UK carries with it a powerful and compelling public interest in disclosure. It is for this reason that the Commissioner has decided to order partial disclosure of the information in this case, such disclosure being limited to select extracts of the information which concern the Iraq issue only from the UK perspective, and which do not reveal any confidences or information given by the US, nor prejudice UK relations with either the US, the UN or any other countries.
The original request for information in this case was for records of governmental discussions which took place between the UK, France and the US following the television interview of President Chirac on 10 March 2003. The FCO initially withheld all of the requested information, but disclosed 5 of the 6 documents, including a note of a discussion between Prime Minister Blair and President Chirac, during the course of the Commissioner's investigation, accepting that the balance of public interest had shifted in favour of disclosure following evidence heard by the Iraq Inquiry. The disclosed documents were placed in the public domain on the Iraq Inquiry website.

Thursday, September 22, 2011

Commissioner orders partial disclosure of previously vetoed minutes

The Information Commissioner has again considered whether minutes of meetings of the cabinet sub-committee on devolution from 1997/8 should be disclosed under the Freedom of Information Act. These minutes were the subject of an earlier FOI request made in 2005. The Commissioner had ordered them to be disclosed (Decision Notice FS50100665). The Cabinet Office appealed this decision to the Tribunal, but prior to the Tribunal hearing, the then Secretary of State for Justice, Jack Straw, issued a veto under section 53 of the Act, overruling the Commissioner's decision (see earlier post). This was, and remains, only the second time the veto has been used.

At the time, Jack Straw identified a number of factual disagreements with the Information Commissioner. The Commissioner had found that only 1 member of the Cabinet committee was still in government at the time of the request. Mr Straw said in fact 15 of those who attended committee meetings were still ministers when the request was made. He also disagreed with the Commissioner's view that the policy issues discussed in 1997 were no longer live and that papers provided little insight into ministers' views. The Commissioner published a response to the use of the veto, which suggested that had the Tribunal been given the opportunity to hear the case, it may have found that the government was entitled to withhold some of the information.

In his decision on the new request, the Commissioner states that he "does not rely to any extent on the continued involvement or otherwise of the participants in the Devolution Committee in politics", but he "has recognised the validity and weight of the argument against disclosure on the grounds of preserving the convention of collective Cabinet responsibility".
His conclusion is that this factor [preserving the convention of collective Cabinet responsibility] tips the balance in favour of maintenance of the exemptions in relation to some of the information, specifically content that identifies individual Ministers and other content that in the Commissioner’s view covers what could be fairly characterised as the more sensitive areas of policy discussed by the Devolution Committee. In relation to the content identifying individual Ministers and the content recording discussions on sensitive issues, the view of the Commissioner is that the factor relating to collective Cabinet responsibility continues to carry significant weight. The Commissioner would stress that his decision in relation to information identifying Ministers means that only the content specifically identifying any Minister should be redacted...

In relation to the remainder of the content, the Commissioner considers that its disclosure would not be likely to result in harm to the convention of collective Cabinet responsibility, particularly given the passage of time. The Commissioner considers there to be a specific public interest in disclosure in order to inform current and future debate about devolution and a general public interest in the transparency and openness in decision-making.
The latest decision also upholds the use of the exemption for legal professional privilege in relation to legal advice provided to the devolution committee or to the government itself.

The decision to again disclosure of some of the minutes will be a test for the coalition government and its commitment to transparency. In response to the previous government's veto of the minutes, the Liberal Democrats' then justice spokesman, David Howarth MP, was reported to have said:
This completely undermines Labour's claims to be committed to open government...the veto is clearly a threat to freedom of information and should be abolished.
The Ministry of Justice recently published a revised policy on use of the veto in relation to information falling within the scope of section 35(1). This states:
The Government recognises that the public interest against the disclosure of much material covered by collective responsibility will often be strong, but that the scheme of the Act does not make protection absolute. Accordingly, the drafting of the section 35 exemption reflects Parliament’s intention that in some circumstances, the public interest in relation to information covered by it may fall in favour of release. So in particular cases the public interest in favour of the disclosure of material covered by collective responsibility may prevail.
It then goes on to outline a number of guiding principles, criteria for determining what constitutes an exceptional case and factors to be taken into account when considering whether to exercise the veto.

Tuesday, September 13, 2011

Effect of NHS reforms on FOI rights

The Campaign for Freedom of Information has written to the Health Secretary, Andrew Lansley, expressing concern that the public's rights to information about the NHS are likely to be "increasingly constricted" by the reforms in the Health and Social Care Bill.

Under the reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies which commission services will themselves be subject to the FOI Act though the independent providers will not. However, the providers will be contractually required to provide information to the commissioning bodies to help them answer FOI requests.

The standard NHS contract already contains a clause requiring providers to do this. But according to the Campaign, the clause appears to apply only to the specific information which the contract itself requires a provider to hold or report on. While numerous items of information are specified – for example, about the quality of the service, treatment times, complaints, MRSA infections and other matters - it does not cover the full range of information that would be available under FOI from an NHS body itself.

In the letter, the Campaign calls on the government to extend the disclosure provision so that FOI rights in relation to independent providers’ NHS work is as wide as that of NHS bodies themselves. The Campaign director Maurice Frankel says:
“Suppose there is concern about the use of potentially contaminated medical supplies by hospitals. For an NHS hospital, the FOI Act could be used to obtain details of stocks of the product, the number of doses administered, the numbers of affected patients, the quality control measures in place, correspondence with suppliers, minutes of meetings at which the problem was discussed and information showing what measures were considered, what action was taken, how promptly and with what results.

This level of information would clearly not be available in relation to independent providers treating NHS patients. This would represent a major loss of existing information rights."
Read the letter here.

Monday, September 05, 2011

Campaign responds to debate about tobacco company's use of FOI

The freedom of information request made by the tobacco company Philip Morris to the University of Stirling for information relating to a survey on the smoking habits of teenagers has received a great deal of media attention. It has been extensively covered by The Independent and was discussed on a number of radio shows last week.

An article by Maurice Frankel, director of the Campaign for Freedom of Information, published in The Independent defends the "applicant blind" principle of the Freedom of Information Act and suggests that the threat of disclosure may not be as severe as researchers fear:
Are tobacco companies abusing freedom-of-information laws by asking for the raw data obtained by academics studying teenage smoking? Research funded by a cancer charity trying to reduce smoking is being sought by a giant tobacco company keen to recruit users to its lethal products. Not surprisingly, the requests are highly contentious. But is the threat as severe as it seems?

A problem for Stirling University's Centre for Tobacco Control Studies is that our FOI laws are designed to be "applicant blind". Decisions depend on whether information can safely be made public – not whether it should be released to the specific requester, however much it may be abhorred.

That principle is important. It means that an authority cannot refuse a request because the applicant is opposing its policies, criticising its competence, challenging its decisions in court or, in the case of an opposing political party, trying to replace it in government. It cannot withhold complex data because it claims the requester lacks the ability to understand it – or withhold from a campaigning journalist what it hands over to a pliant hack.

...The researchers have argued that if they are forced to hand over the information (presumably even in anonymised form from which subjects could not be identified), funders will be reluctant to back them, other academics will not share data with them and teenagers will refuse to be interviewed in future.

If this is true, then a specific exemption in the Scottish FOI Act may apply. This allows information collected during a continuing programme of research to be withheld if future reports are planned and disclosure would substantially prejudice them. The exemption is subject to a public-interest test. Other exemptions, such as breach of confidence, may also apply. This means the "catastrophe" the researchers warn about may not be imminent at all.
David Goldberg, a spokesperson for the Campaign for Freedom of Information in Scotland has also had a letter published in The Herald:
The battle for freedom of information is ongoing, sometimes on fresh fronts (Ian Bell, The Herald, September 3).

Fundamental FOI principles are worth restating.

First, requests should be treated as applicant (and motivation) blind. The implication of Mr Bell’s article is that Philip Morris International’s request should be refused because PMI are hateful poisoners. But, if that approach were adopted how long would it be before anyone is refused by an authority which finds their views dangerous or merely unacceptable?

Secondly, information should be disclosed unless it would be substantially damaging to make it public, regardless of who requests it. If Stirling University is not exaggerating what it says would be threatened by disclosure, and can demonstrate that, then the university may be able to satisfy various exemptions, including maintaining any confidences owed.

If, on the other hand, the university are exaggerating their case, the information would have to be disclosed, and rightly so.

Friday, September 02, 2011

Public Accounts Committee: FOI Act should be extended to private companies providing public services

The House of Commons' Public Accounts Committee has called on the Government to extend the Freedom of Information Act to public companies providing public services. In a report examining the lessons from the private finance initiative and other projects, the Committee states:
Taxpayers could get a much better deal from PFI, as demonstrated by the buoyant and profitable market in PFI deals. The taxpayer’s position is made worse by poor transparency of investor and contract information alongside patchy public sector commercial skills. We suspect that initial investors are able to make excessive profits from selling PFI shares, yet we lack the information to know for sure. Freedom of information provisions do not currently apply to private providers of public services though investors told us they are willing to make more detailed information available. We believe there is a strong case for sharing these gains with the Government. We look to the Treasury and departments to make full use of existing contractual rights of access and further investor information to increase transparency and find ways for taxpayers to get a share of these gains.
...Public scrutiny of investor returns has been inhibited by the absence of an obligation on investors to disclose full details of their profits and gains on PFI deals. The Treasury cited commercial sensitivities for not allowing freedom of information provisions to apply to the private sector. While aspects of some deals may be commercially sensitive, it has been all too easy for departments and investors to hide behind commercial confidentiality, rather than provide full disclosure of costs and benefits to inform value for money. These are publically funded investments and should be subject to public scrutiny.
The Committee recommends:
Transparency on the full costs and benefits of PFI projects to both the public and private sectors has been obscured by departments and investors hiding behind commercial confidentiality. The Treasury cited commercial sensitivities for not allowing freedom of information provisions to apply to the private sector. Once contracts have been let, commercial confidentiality should not restrict the ability of the public, Parliament and decision makers to access information. Freedom of information should be extended to private companies providing public services. The Treasury should define commercial confidentiality and the exceptional circumstances where it applies.
Lessons learnt from PFI and other projects HC 1201, 1 September 2011