Tuesday, December 20, 2011

No need for more Cabinet secrecy

The Campaign for Freedom of Information has written to The Times responding to comments made by Sir Gus O'Donnell, the outgoing Cabinet Secretary, that the Freedom of Information Act should be amended to provide greater protection for cabinet discussions. In an interview [£], Sir Gus told the newspaper he was a "massive believer in transparency" but "the bit that I'm really against in freedom of information is that bit where it reduces the quality of governance, so I want there to be a safe space."

An edited version [£] of the letter appeared in The Times on 20 December 2011. The full letter is below.
Sir, It is hard to believe that the Freedom of Information Act is the severe threat to cabinet government that Sir Gus O’Donnell, the cabinet secretary, maintains (‘Keep Cabinet secret’, December 17).

If the government thinks that the public interest favours keeping policy discussions or ministerial communications confidential, it can already appeal to a Tribunal against any decision by the Information Commissioner to order disclosure. There are further rights of appeal to an Upper Tribunal, the Court of Appeal and beyond. If arguing the case is too much trouble, ministers can instead simply veto the decision. As Sir Gus acknowledges, this has twice been done to protect cabinet and cabinet committee minutes. Yet he now seeks further protection precisely for such minutes.

The Tribunal’s decisions explicitly give heavy weight to the public interest in protecting collective cabinet responsibility by withholding evidence of ministerial disagreements. They also assume that disclosing options or advice while these are still under discussion is unlikely to be in the public interest.

When Tony Blair prematurely announced, in 2006, midway through a public consultation on nuclear energy that he had already decided the key issue, the Tribunal nevertheless refused to order disclosure of the briefings he had received or the views of ministers, finding that “they were entitled to be treated as confidential” at the time of the request “and probably for a substantial time thereafter”. Officials’ advice was also withhelsd.

Sir Gus presumably wants the Prime Minister to resuscitate the proposal rejected by the last government, to exclude all cabinet and cabinet committee papers - not just minutes - including exchanges between departments, from FOI for 20 years. This would have kept secret interdepartmental discussions on issues like BSE, permitting disclosure only when it was too late to inform debate, provide accountability or learn from mistakes. Key documents on countless other issues would also be secret for two decades, regardless of the public interest in openness or the fact that when requested they might no longer be sensitive.

The last government rejected this proposal. The present should do the same.

Maurice Frankel
Director, Campaign for Freedom of Information

Monday, December 19, 2011

MoJ discloses further details about extension of FOI

Following a FOI request by the Campaign for Freedom of Information (see earlier post), the Ministry of Justice have disclosed further details about the bodies they are consulting on FOI coverage.

In addition to the 25 bodies announced on 7 January 2011, the list includes over 150 'awarding bodies', and over 200 harbour authorities. A list of all the bodies can be downloaded as an Excel spreadsheet here.

The MoJ have also provided a list of the bodies they believe are likely to be brought within the scope of the Act by the amendment to the definition of 'publicly owned company' that is being implemented via the Protection of Freedoms Bill. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. The response to our FOI request stated:
We do not hold a comprehensive list of all bodies which will come within scope of the FOIA through this change. However, we carried out targeted research on a number of local authorities to estimate the number of bodies likely to be affected by this change within local government, and the list I have provided is the result of this research. I should clarify that the information on the list simply reflects the responses provided by the local authorities we contacted (green colour code) or from our own research (pink colour code). We have estimated from this information that the number of bodies that will be brought within scope under the changes to section 6 will be at least 100.
Jointly owned companies identified from the research include Bramcote Crematorium, Gunnersbury Park, Manchester Airport PLC, Gloucestershire Airport, Beacon Local Nature Reserve, Mount Edgcumbe House and Country Park, Farningham Woods Nature Reserve, Shoreham (Brighton City) Airport, Wetley Moor and Connexions Staffordshire as well as a number of shared purchasing and services companies.

The list also contains examples of companies partially owned companies which won't be covered by the changes to section 6. Such companies include Nottingham City Transport of which Nottingham City Council is the majority owner, and the NEC Group which has two shareholders Birmingham City Council and Birmingham Chamber of Commerce, although the Council bears financial responsibility for the Group.

The MoJ also disclosed a copy of the template letter that has been sent to the bodies being consulted and a draft impact assessment on the consultation.

Thursday, December 15, 2011

Guidance on private email accounts welcomed

The Campaign for Freedom of Information welcomed today’s guidance from the Information Commissioner confirming that emails dealing with public authority business sent using officials’ private email accounts are subject to the Freedom of Information Act. The guidance points out that the same is true regardless of where information dealing with official business is held. This is because the Act applies not only to information held by a public authority but also to information held by “another person on behalf of the authority”.

The Campaign’s director Maurice Frankel said: “It's been well understood since the Act came into force that officials couldn’t avoid FOI simply by doing their work on their home computers, using private email accounts or keeping official files under their beds. If it was that easy to avoid FOI, Whitehall would have closed down and government business would be carried out from people’s homes. If people have been deliberately using such techniques to claim that no official records exist, they may have been committing an offence under the Act.”

The Information Commissioner’s new guidance says that where private account emails are used for official business because no official channel was available at the time it should be copied to the authority’s email system. It confirms that on occasions officials may be asked to search their private email accounts for messages dealing with official business, if these are needed to answer an FOI request. It also warns that anyone concealing or deleting requested information in order to prevent its disclosure under the Act may be committing an offence.

See also:
Disclosure rule for private emails set to shake Whitehall - FT 15 Dec 2011 (registration required)
Private email accounts are covered by information law - Martin Rosenbaum's blog post
FOI Man's blog post Privacy, email and clean pants