Monday, October 24, 2011

Speech on future of FOI by Lord McNally

The Ministry of Justice has published the full text of a speech given by Lord McNally at the Westminster Legal Policy Forum event 'The future of freedom of information - challenges for expansion' which was held on 20 October 2011.

You can download the speech as a Word document here.

Friday, October 21, 2011

Parliamentary debates on extension of the FOI Act

The Freedom of Information (Designation as Public Authorities) Order 2011 was debated and approved by both Houses of Parliament this week. The Order was made under section 5 of the FOI Act, which provides for the Secretary of State to extend the Act to bodies with public functions or to contractors providing public services on behalf of authorities (where the provision of the service is a function of the authority). The Order designated three additional bodies - the Association of Chief Police Officers, Financial Ombudsman Service and the Universities and Colleges Admissions Service - as public authorities for the purposes of the Act.

The Order was debated by a Delegated Legislation Committee in the House of Commons. During the debate a number of points were made about the scope of the Order and the government's commitment to extend the Act:
Mr Andy Slaughter (Hammersmith) (Lab): We welcome this extension to the number of pubic bodies covered by the Freedom of Information Act 2005 from—to use the Minister’s figures—100,000 to 100,003. We do so because the previous Labour Government were proud of the legislation, and the Opposition remain proud of having introduced it. In fact, the bodies were told that they were likely to become subject to the legislation in March 2010, under the previous Government, as the explanatory notes make clear. The order is clearly a de minimis extension to the number of bodies covered, although the individual bodies are important. Looking at them singly, it seems a logical extension to include each of them...

Secondly, I want to put on record that the substantial problem that I suspect that many colleagues have with the Freedom of Information Act is not the legislation itself, but its selective operation by public bodies, and the variation in responses, which range from helpful and speedy to deliberately obfuscatory and obstructive. That is something that the Government need to look at, because some public bodies—irrespective of party, type of organisation, and whether they are national or local—put more effort into avoiding the provisions of the Act than fulfilling their statutory duties. That is simply wrong. It is an abuse of legislation that this House has passed, and that needs the Government’s urgent attention...

Tom Brake: I will be brief. I welcome the fact that ACPO will be covered by FOI. I always thought that its exclusion was an anomaly, given the role that it plays. At the risk of sounding like a broken record—Members will hear that it is a 78—I hope that Network Rail will feature in the list of 200 bodies that are being considered for possible inclusion under FOI, because many of the issues that surround ACPO also surround Network Rail. The organisation is a recipient and a spender of large amounts of public money. To all intents and purposes, all its activities are in the public domain and should be covered by FOI; so, too, should the increasing number of private contractors doing public works. I wonder whether they will be included in the 200 bodies to which the Minister has referred. We as a Government are spending huge sums of public money on contracts that are delivered by such private companies. They are delivering, in effect, public services, and it would be entirely appropriate for them to be subject to FOI as well...

Mr Richard Shepherd (Aldridge-Brownhills) (Con): The measures announced by the present Government are a welcome improvement to the Act. However, before the election, both the Conservatives and Liberal Democrats promised that Network Rail would also be covered by the Act, and the Conservatives additionally promised to cover Northern Rock, but neither body has been covered. A report by the Public Accounts Committee published in July 2011 concluded that Network Rail, which received £3.7 billion of direct taxpayer support in 2009-10, was “not transparent”...

There are many other candidates for designation, including electoral registration officers and returning officers, whose decisions about voting facilities prevented some from voting at the previous election. They are appointed by local authorities, but have their own legal existence and are not currently subject to the Act. District auditors are another significant omission. The Information Commissioner’s line-to-take document dated 29 August 2006 states:

“Appointed auditors clearly have many of the characteristics of public authorities and it is notable that information relating to audits of central government bodies, which are carried out by the National Audit Office, are accessible under the Act since the NAO is a public authority. The DCA is aware of the apparent anomaly and have told us, on a confidential basis, that consideration is being given to an Order.”

What happened to that consideration?

The responsibilities and powers of the housing ombudsman are to be expanded under the Localism Bill. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the housing ombudsman; complaints about local authority housing go the local government ombudsman. The Localism Bill proposes that, in future, a unified complaints system should apply, with both types of complaint going to the housing ombudsman. Surprisingly, the housing ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the ombudsman under the Act, despite the fact that the housing ombudsman is to take over important responsibilities from the local government ombudsman, who is subject to the FOI Act.

Finally, the public’s right to information is likely to be undermined by some Government policies. Under the NHS reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies that commission services will be subject to the FOI Act, but independent providers will not. The standard NHS commissioning contract contains a clause requiring providers to provide the commissioning bodies with information to help them answer FOI requests, but the clause appears to apply only to the specific information that the contract requires a provider to hold or report. The contract does not cover the full range of information that would be available from an NHS body under FOI.

As functions are transferred from NHS bodies to independent providers, the existing broad FOI right of access is likely to be increasingly constricted. To prevent that, any contractual disclosure provision must reflect the full breadth of the existing access right and not be limited to specified databases, statistics or reports, however numerous they may be. The disclosure provision should extend to any information that would assist in assessing the adequacy of a provider’s services. Furthermore, where a provider’s work consists primarily of treating NHS patients, the provider should be made subject to the FOI Act under section 5 of that Act.

There are similar concerns about the contracting out of local authority functions proposed by the Localism Bill. The more council functions that are carried out by contractors, the harder it will be to rely on the Freedom of Information Act to scrutinise what is being achieved. The Government have so far refused to support potential solutions to that; they prefer to defer consideration of the issue until post-legislative scrutiny of the FOI Act next year, which risks the emergence of serious gaps in FOI coverage in the meantime.
The Order was also considered by Grand Committee in the Lords, during which a number of points about the Act's operation were made, including by the former Speaker of the House of Commons, Lord Martin of Springburn, who raised concerns about journalists' use of the Act:
Lord Martin of Springburn: Many journalists use freedom of information so that they can get what is best described as an angle for their particular story. When they ask the question and there follows a period of, let us say, 27 days-although I may be contradicted on that-I have known it to be the case with matters of the House that they have complained bitterly that the freedom of information was given to them and to the general public. They have complained bitterly that it spoiled their story that everybody else should get the information. Freedom of information is about everybody getting that information. They are on record as complaining; they are using it as a device to get a scoop, or whatever they call it.

I feel strongly that once the information is issued to the applicant for that freedom of information, it should be put in the public domain immediately afterwards. In other words, if the information is given to the applicant at 2 o'clock on a given day, by one minute past two everyone should be able to get that information. I know that some people say that the identity of an applicant should not matter and that you should not know who they are. However, it is a bit rich if an application is made by someone sitting in garret in Toronto, asking for information, which takes a considerable amount of public funding. We should at least know whether a taxpayer of this country is making that application. Can the Minister mention that? It is not fair that someone who has nothing else to do with their time in another country can make an application and no one has to say where they come from. That is very important...

The Minister of State, Ministry of Justice (Lord McNally): I turn to points raised by the noble Lord, Lord Martin, a number of which I thoroughly agree with. There have been journalists who have turned freedom of information into a kind of cottage industry. I again hope that the transparency agenda will make this less necessary, and that people will get the information that they want. I take his point about immediate publication. In pushing forward the agenda we press organisations to publish immediately or as soon as possible. In certain circumstances there may be a reason to consult and delay, but in the main I agree with what the noble Lord, Lord Martin, said. This is not information for an individual journalist; this is public information, and should be made public as quickly as possible.

I was interested in his points about the Republic of Ireland. I was on the pre-legislative committee that looked at freedom of information. The noble Lord, Lord Bach, is nodding; he will recall that one of the most enthusiastic pieces of evidence we received about freedom of information was from the Irish freedom of information director...The interesting thing about that was that the Irish have had post-legislative scrutiny of their own legislation and have brought in a number of restrictions, such as the one that the noble Lord, Lord Martin, referred to. They have brought in charges for some aspects of freedom of information.

The critics of freedom of information say that it puts unfair burdens and great costs on departments, as referred to before by the noble Lord, Lord Martin. I hope that the Justice Committee will take a good look at how the Act is working, take evidence from its critics and supporters, and then take us forward as we have indicated.
It's interesting that Lord McNally refers to "post legislative scrutiny" of the Irish Freedom of Information Act having led to restrictions being introduced to the Irish legislation. In fact, the process of review of the Irish FOI Act was far from open, as the Irish Information Commissioner described in a report to mark the first decade of the Irish Act:
The Review Group consisted of four Secretaries General under the chairmanship of the Secretary General to the Government and, remarkably, conducted its review in secret; it did not seek the views of the public, of any of the parties with a particular interest (such as the media) nor of the Information Commissioner. The review process was the very antithesis of the process which preceded the drafting of the original legislation...The primary urge to amend arose from the fact that, with effect from 21 April 2003, some Cabinet records would have become potentially available under the FOI Act.

A copy of the draft Order, Explanatory Memorandum and Impact Assessment are available here.

MPs debate Hillsborough documents petition

On 17 October, MPs debated the e-petition signed by over 140,000 people calling for full disclosure of documents relating to the 1989 Hillsborough disaster, in which 96 Liverpool fans died.

The petition was prompted by the Cabinet Office's decision to appeal a ruling by the Information Commissioner ordering information relating to the disaster to be disclosed to the BBC. In April 2009, the BBC made a request for all information provided to Margaret Thatcher in April 1989 relating to the disaster and minutes of meetings attended by the then Prime Minister at which the disaster was discussed.

After a nine-month delay, the Cabinet Office refused the request citing several exemptions, including information relating to the formulation or development of government policy and ministerial communications. The BBC requested an internal review. Following a further seven-month delay, the Cabinet Office upheld it's decision and cited three additional exemptions.

The BBC appealed to the Information Commissioner. On 20th July 2011, the Information Commissioner found that the public interest favoured disclosure and ordered the information to be released. The Commissioner's decision also criticised the Cabinet Office for the "unjustified and excessive delays" in its handling of the request.

Responding to the debate, the Home Secretary, Theresa May, apologised for government's handling of the request and gave a reassurance that the papers would be released with minimal redaction to the families first and then to the general public:
The reason for this debate and for the motion behind it concerns the Cabinet Office’s decision not to disclose papers relating to the disaster in response to a freedom of information request from a BBC reporter. I want to state very clearly that the Government’s position has absolutely nothing to do with attempting to suppress the release of those papers or to somehow hide the truth. I am sorry that the way the Government responded to the FOI request caused anxiety among the families and concern on Merseyside and beyond.

The Government firmly believe that the right way to release the papers is through the Hillsborough independent panel—to the families first and then to the public. The families should have the papers, and they should not have them filtered through politicians or the media. We therefore support the Hillsborough independent panel and today’s motion. We want full disclosure to the panel of all documents relating to Hillsborough, including Cabinet minutes. Those documents should be uncensored and unredacted. Indeed, the full unredacted Cabinet Office papers on Hillsborough have already been made available to the panel. That includes minutes of the meetings of the Cabinet immediately following the disaster...

The Government are not seeking to avoid the publication of Cabinet minutes or any other Hillsborough papers. The Cabinet papers on Hillsborough can be published, and the Government will do nothing to prevent the panel from publishing them or indeed whatever it so decides. The panel will release the full picture of what happened at Hillsborough, but in a way that is respectful of the families.

The panel’s terms of reference envisage minimal redaction to avoid junior officials’ names and addresses being published; to avoid signatures being available for copying; and to ensure that the Data Protection Act is not breached. It might also be necessary to redact sensitively private and personal information specific to the victims. However, it will be the role of the panel to ensure that any redactions are kept to a minimum.

The principle is clear: full publication and minimal redaction, and the panel seeing all of the papers, uncensored and unredacted—as the families have rightly demanded: the whole loaf, not snippets. I stand ready to do anything I can to aid the independent panel in completing its task.
You can read the debate in full here.
See also Martin Rosenbaum's blog posts here and here.

Wednesday, October 05, 2011

‘FOI Appeal Routes’ Seminar, University of Dundee

Wednesday 19 October 2011
Dalhousie Building, University of Dundee

While the UK and Scottish Freedom of Information (FOI) laws are very similar, there are some key differences between them – difference which can sometimes have a material impact for the requester or authority involved in the request. One such difference concerns the appeal mechanisms that are in place following a decision of each Commissioner. While appeals under the Scottish Act are made directly to the courts, requesters and authorities in England and Wales can appeal to an ‘Information Rights’ Tribunal. In 2009/10, there were 161 appeals to the Tribunal against decisions by the (UK) Information Commissioner, 62% of which were brought by requesters. In Scotland, during 2010, there were two appeals heard by the courts in relation to Scottish Information Commissioner decisions.

But what impact does this have in practice? Do the different systems lead to different outcomes? Which model best serves the resolution of FOI disputes? Is there anything we would change?

This seminar will consider and explore the appeal mechanisms under both FOI regimes.

Speakers:

Professor John Angel, Principal Judge of the First-tier Tribunal (Information Rights)
The FOI Appeal Process in England and Wales

Christine O’Neill, Partner, Brodies LLP
Reflections on the Scottish model

Rob Edwards, environment correspondent, Sunday Herald
FOI Appeals: the requester’s perspective

A buffet lunch is served at 1pm, and the seminar will run from 2pm to 4pm.

For more information, or to book a place, visit: www.centrefoi.org.uk/

Speaker Biographies:

Professor John Angel
John Angel was the first President of the Information Tribunal. He set up the General Regulatory Chamber in the First-tier Tribunal (FTT) and was its acting President during that time. He is currently a deputy judge in the Administrative Appeals Chamber of the Upper Tribunal and Principal Judge of the Information Rights jurisdiction in the FTT.

John is a retired solicitor who was formerly the Head of Online Legal Services at the global law firm Clifford Chance and before that he practised technology law at Theodore Goddard. He has written, contributed to and edited a number of books and papers on subjects such as computer, telecommunications and electronic business law and has previously held a number of (non legal) management positions in the IT industry. John is also a visiting Professor at the Institute of Computer & Communication Law, Centre for Commercial Law Studies, Queen Mary, University of London.

Christine O’Neill
Christine O'Neill is a partner in the public law and regulatory team at Brodies LLP. She advises a range of clients on information law issues including FOI, data protection and data security and acted for the Scottish Information Commissioner in a number of appeals to the Court of Session. A solicitor advocate, she appears regularly in courts and in public inquiries for public authorities and commercial clients.

Rob Edwards
Rob Edwards has been a freelance journalist specialising in environmental issues for more than 30 years. He has written for New Statesman, The Observer, The Mail, The Sunday Times, Scotland on Sunday, The Scotsman, The Glasgow Herald, the Edinburgh Evening News and many others. Since 1999 he has been the environment editor of the Sunday Herald and a correspondent for New Scientist and The Guardian. He has co-authored three books about nuclear power, and won a series of journalist awards. Since 2005, he has made 242 requests under freedom of information legislation in Scotland and the UK. He lives in Edinburgh, and likes muckraking.