Thursday, February 28, 2013

Questions in House of Lords on Government plans to amend the FOI Act

Lord Wills asked what plans the Government have to amend the Freedom of Information Act during oral questions in the House of Lords on 27 February.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government intend to amend the Act to give the Information Commissioner more time to prosecute alleged offences under Section 77 of the Act and introduce a dedicated exemption for prepublication research. Other parts of our response to post-legislative scrutiny will be implemented through secondary legislation codes of practice and guidance.

Lord Wills: My Lords, I very much welcome what the Minister has just said about giving the Information Commissioner new powers but I hope he will recognise that suggestions have been made by other Ministers-not this Minister whose commitment to freedom of information is exemplary-that they will tighten the Act. I hope this Minister will recognise that tightening the Act in the way that has been suggested will damage transparency. He will recall that the previous Government at one point proposed to increase fees for accessing freedom of information requests and then dropped the proposal when they realised the damage that that would do to transparency. Are the Government now downplaying that risk to transparency, and doing so at a time when the Francis report into Mid Staffordshire shows just how dangerous damaging transparency can be?

Lord McNally: My Lords, it is true that we are looking at other aspects of the post-legislative scrutiny through secondary legislation. However, I can assure the noble Lord that my commitment, and the Government's commitment, to transparency and freedom of information, which I see as twin tracks of government policy, remains as steadfast as it has always been. Ideas and information about other aspects of the post-legislative scrutiny fully justified the exercise and I compliment my right honourable friend Sir Alan Beith and his committee for doing an excellent job. It has done much to embed freedom of information in our political culture.
Lord Marks of Henley-on-Thames subsequently asked the Minister to give an assurance that there would be no extension of the Government's power to decisions of the Information Commissioner and Tribunal and no further fees, particularly for appeals to the Tribunals.
Lord McNally: I do not think I can give an absolute assurance on that. We decided to retain the veto following discussions that had gone on since the start of the freedom of information debate about whether, at the very heart of government, a safe space was needed for genuine discussions. At the moment, I am having discussions with colleagues about these ideas and principles and in due course I will inform the House and give it an opportunity to comment on this. It is always an interesting balance. We have faced this problem for a decade or more since we debated these principles in this House. Indeed, we had a very interesting debate a few months ago where a whole clutch of former mandarins gave their opinions about what is called the "chilling effect" of freedom of information. I do not accept that there is such a chilling effect, but I do accept that it is right-as is the proper intention of the post-legislative review of the Act-that we look at how the Act is working and we will come back with recommendations in the areas raised by my noble friend.

Wednesday, February 13, 2013

Justice Committee hears from Information Commissioner on Government's FOI proposals

On 5 February 2013, the Justice Committee held a one-off evidence session on the work of the Information Commissioner's Office. The session provided an opportunity for the Committee to hear the ICO's views on the Government's proposals to make it easier for authorities to FOI refuse requests on costs grounds and revise its policy on use of the ministerial veto.
Q25 Mr Llwyd: Can I ask you about the use of ministerial vetoes, which is again a very important point?...Is it the case in fact that the Government do not seem to be following their own statement of policy or that that statement of policy is actually wrong?

Christopher Graham: I reported to this Committee on 3 September about the ministerial veto activated by the Attorney-General on 31 July in relation to the Iraq minutes...

I was very struck by the Attorney-General scattering the “E” word around—there were a lot of instances of “exception” and “exceptionally” in the notice supporting the certificate. That seems to me to conflict with what was said in Parliament at the time that the law was passed, which was: “The Government considers that the veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet. This policy is in line with the commitment made by the previous administration during the passage of the Freedom of Information Bill that the veto power would only be used in exceptional circumstances, and only then following collective Cabinet agreement.”...

I understood that the veto would be invoked very rarely and I do not think that the Commissioner or the tribunal is suddenly scattering unacceptable decision notices around...

Q26 Mr Llwyd: Following on from that point, my understanding is that the Government will now be reviewing and revising their policy on the veto, including in fact its application in cases which do not involve Cabinet-related information. First, how do you think it should be revised? Secondly, will you be in a position to inform that particular discussion?

Graham Smith: Perhaps that initial reaction suggests that we are not involved at the moment in that particular discussion. There is no legal requirement on the Government to have a veto policy here. They decided themselves that they would have a policy on the exercise of the veto, and I think now they are trying to extricate themselves from having their hands tied by the policy that they came up with, which, as I think you say, was in the context of Cabinet material being envisaged as what would most likely be the subject of the veto. I should say that it was the previous Government we are talking about there.

We have now had two cases—one involving the NHS risk register on the proposed reforms there, and the other one more recently on the Prince of Wales’ correspondence— which do not involve Cabinet discussion. My understanding is that the Government are looking for a policy which can be applied in a wider set of circumstances than perhaps had been originally envisaged.
...
Q29 Rehman Chishti: I have a few questions in relation to costs of compliance. First, what is your view of the Government’s proposals, in their response to our report on post-legislative scrutiny of the Freedom of Information Act, to reduce the costs to public authorities of compliance with freedom of information legislation?

Graham Smith: We are talking here about the proposals for the cost limit, which threatens to remove from the ambit of the Freedom of Information Act considerable numbers of requests, irrespective of their public interest merit. That is very concerning. The Committee, I think, rightly recognising that there were genuine issues of burden, suggested that it might be appropriate to reduce the cost limit marginally, and I think you suggested two hours of search and retrieval time. But the Government’s response said that that is so marginal that it would not have any significant effect. They are also looking at including in the activities that can be taken into account when calculating the cost limit the consideration of the information against the exemptions in the Freedom of Information Act. That is the thing that I think threatens to remove a lot of requests from the ambit of freedom of information.

If the cost limit was both reduced in terms of the actual amount that we are talking about and the amount of time that we are talking about, and these additional activities could be taken into account when calculating the cost limit, then we really would be talking about a significant number of cases being potentially removed from the ambit of freedom of information. But we do not have detail of the Government’s proposals yet. We have not seen any. We have not been asked to comment on or discuss any potential formulae that they might come up with. So at the moment we are just feeling somewhat trepidatious about the situation.
...
Q32 Rehman Chishti: I am grateful for that because you obviously have more information at your fingertips than I have over here. If I may move on to my supplementary, do you accept that there is a phenomenon of “industrial” use of the Act, which is proving overly burdensome to public authorities—perhaps local authorities in particular?

Graham Smith: We recognise that there are some users of the Act who use the rights on a large scale. On occasions, that can be regarded as abuse. We discussed the provisions under the Act for vexatious requests at some length in the post-legislative scrutiny sessions before this Committee. There has just been a very useful and important upper tribunal decision on vexatiousness in this context, which again was released last week, and that will help public authorities and the Commissioner in the application of those provisions.

Where I would disagree with the impression I was getting from some of the Committee’s deliberation is that this “industrial” use is, if you like, ascribed to some journalists, who, in my experience, are on the whole using the Act very effectively. It has to be said that it is through journalists that a number of very important pieces of information in the public interest have been disclosed under the FOI Act which otherwise would have been kept secret, and we have been talking about some of them today in the course of the discussions...

Q33 Rehman Chishti: Sure. I have a final supplementary, if I may. Should fees be charged to requesters who take cases to information tribunals?

Graham Smith: That is very difficult. It would very much change the scheme as it has been introduced...What is relevant is that we have seen, in the last couple of years in particular, much more efficient use by the tribunal of its case management powers so that cases that have no reasonable prospect of success can be the subject of a strike-out application, and we make those applications. The tribunal judges are much more willing to consider those cases very seriously. Whereas in the previous business year we saw about 15% of tribunal appeals being struck out right at the very early stage, so far this year that is running at about 20%. So I think the tribunals themselves are aware of the need to be more efficient and more cost-effective. My own view is that a gateway fee is perhaps a rather blunt instrument in those circumstances, although I can see the attraction in pure cost-saving terms because it would no doubt reduce the number of appeals. Again, it would be arbitrary because it does not necessarily mean that the appeals that are deterred are those without merit, whereas the current strike-out arrangement does address that issue.
The Commissioner was also asked a broader question about public authorities' compliance with Act. In response he told the Committee that the squeeze on his funding could mean the backlog in FOI casework returning:
Q34 Graham Stringer: Can you give us a broad-brush view of the problems, as you perceive them, of getting public bodies to comply with the freedom of information, both in the spirit of the Act and the detail of the Act?

Christopher Graham: We have had considerable success as the Act has settled down in recent years by being quite aggressive about those local authorities that do not comply in a timely way. We have a programme of monitoring. At the moment, we have just four public authorities who are being watched over the first quarter of the year. One of them is the Department for Education. In recent years the list has been much longer than that. As the ICO itself has speeded up its consideration of appeals, that, as we intended, has had a salutary effect on the rest of the public service, and other people have got on with it because they realise that the Information Commissioner will not take years to get on to their case. The whole thing has speeded up very satisfactorily....

Q35 Graham Stringer: Would it be fair to say, going back to your previous answer, that things are improving, but they would improve more quickly if you were able to audit public bodies?

Christopher Graham: Certainly, because we would concentrate our efforts on those organisations. Wirral borough council is on the watch list at the moment. I would really like to send in a good practice squad to Wirral borough council, but I do not have the powers do that. I am not picking on Wirral; it is just an example that comes to mind.

Graham Smith: We came forward with a proposal that, if there were statutory time limits, that would put in more of a kind of framework and help to prevent some of the undesirable practices that we see on some occasions, when either the response to a request is spun out on public interest grounds—they take too long under a public interest test extension—or, without a statutory time limit on an internal review, those can take months and months. There is no obligation to give reasons for exercising a public interest test extension or for how long it takes for an internal review. Again, we can do something about it if the complainant comes to us, but, quite often, they do not come until they ultimately get their response and then we find that it has taken six months. Then we can do something about it by way of a practice recommendation.

Certainly for some public authorities, who do not come to the table with a willingness to comply either with freedom of information requests generally or with specific freedom of information requests which they find, say, politically inconvenient or unhelpful, it gives them the opportunity to kick them into the long grass. We do see evidence of that. Our powers to do something about it are limited, and I think the Act would be stronger if there were statutory time limits. A code of practice is fine, but, by definition, it is a code of practice. While we can take action by way of a practice recommendation for frequent breaches of a code of practice that we have evidence of, it is not the same as an enforcement notice power or a decision notice power where there has been a clear infraction of the Act itself.

Christopher Graham: I noticed in the Westminster Hall debate the other day that the suggestion was made that it takes one to two years or more to get a response. I was not clear whether that was referring to internal reviews, but certainly it does not refer to the Information Commissioner’s Office. Whatever may have happened a long time ago, we are now turning round appeals under the Freedom of Information Act very quickly. I have a couple of troublesome cases that have been with us for months and months, but in 90% of the cases requests are dealt with very promptly.

We do not have a backlog, but I will, if I may, take the opportunity to tell the Committee that the squeeze on grant-in-aid money for freedom of information has been relentless. I said in my memorandum—when I came before you four years ago for approbation or otherwise—that I had resisted the temptation from one of the members of the Committee to say I would only take the job if there were adequate resources for freedom of information. I said, “No, I want to go and have a look.” We have made considerable changes and we have speeded up, but we are now getting to the point where the squeeze on the grant-in-aid is such that I have to hold posts open and am just beginning to see the threat of a backlog returning if we are not careful. We are determined to manage things to make sure that that does not happen, but we are beginning to run out of road because I can only spend grant-in-aid money on freedom of information. I cannot subsidise freedom of information work from the data protection side of the house. It is a very funny way to run a £20 million-organisation. I am cash rich on the data protection side but very cash poor on the freedom of information side.

That has a bad effect. Despite the heroic efforts of my staff, it is beginning to get very difficult, and yet the demand for our services is increasing all the time. The increase in the FOI appeals caseload is 5% up this year to date, in January, it is up in data protection by 7.3%, and it is up on PECR, which is the nuisance text messages, nearly 9%. So we are very busy, but we have this crazy funding system where to save £1 of freedom of information money, which the Ministry of Justice wants me to do, I also have to save £4 of data protection money because of the gearing, when I could well do with spending that.

Monday, February 11, 2013

Media Update - 15th to 31st January 2013

Freedom of information laws 'should be extended to private companies' - STV - 31.01.13

Freedom of information laws should be extended to private companies contracted to provide public services, the Scottish Information Commissioner has said. Such a move will ensure accountability and transparency where large sums of tax-payers' money are involved, Rosemary Agnew said.


Placing council services at arms length has weakened Scotland's freedom of information - The Guardian - 30.01.13

The growing use of arms-length management companies and outsourcing agreements by Scotland's local authorities means that fewer and fewer public services are subject to the Freedom of Information (Scotland) Act (FoISA). This loss of rights has been compounded by sustained inaction by successive ministers to fix the problem by extending the Act's coverage, which culminated this month in the Scottish Government's rejection of amendments that would have ensured FoISA returned to the standard intended when passed in 2002.


Ministers consider clampdown on 'industrial users' of Freedom of Information - BBC - 24.01.13

The government is considering how to curb repetitive and overly expensive Freedom of Information requests, justice minister Helen Grant has said. She claimed 'disproportionate burdens' were being imposed by 'industrial users'. In a debate in the House of Commons secondary debating chamber Ms Grant said, "Despite the many benefits that the act has brought, we cannot ignore concerns raised about the burdens that it imposes upon public authorities." But Plaid Cymru MP Elfyn Llwyd said she might be "over-stressing" her case.


Government to make it easier for officials to block FOI requests - The Telegraph - 24.01.13

Ministers want to make it easier for officials to refuse to answer requests from members of the public submitted under the Freedom of Information Act. Justice minister Helen Grant said the Government was looking at stopping "industrial users" who submitted multiple applications. She disclosed that the Government was looking at cutting the amount of time public bodies spend considering applications, which campaigners say will mean that more requests are turned down. The proposed changes have the potential severely to restrict the work of journalists who investigate Government and other public bodies.


Cherie Blair avoids sanctions over £1.3m mews tenant - The Telegraph - 24.01.13

Cherie Blair and her son Euan have escaped court action despite telling an official inquiry they breached planning regulations in respect of a mews house they own jointly in central London. The admission, made on their behalf by an architect, is revealed in documents obtained under the Freedom of Information Act.


Male prison assaults 'rise by a third' in London - BBC - 24.01.13

The number of reported assaults in London's male prisons has risen by a third over the last four years. A freedom of information request to the Ministry of Justice (MoJ) revealed there were 1,950 reported assaults in eight male prisons in 2011, up from 1,463 in 2007. A penal reform group claims a reduction of prison officers is to blame. An MoJ spokesman said: "The rise in the number of assaults in London prisons is mainly due to an increase in the number of prisoners in London." But the figures show London's male prison population grew by just 6% in the time the assaults rose by 33%.


£140,000 cost of using sheep to mow grass in Brighton and Hove - The Argus - 23.01.13

A freedom of information request to Brighton and Hove City Council has revealed that the programme of using sheep for keeping ancient downland and chalkland trimmed has cost more than £140,000 over the last two years. The council had been using grazing animals as a more environmentally friendly way of keeping downland trimmed since 2004. Campaigners have raised concerns about the need to enclose the sheep which is restricting access to historic open spaces with fences and gates.


Number of BBC chiefs earning £100,000 or more rises despite pledge to cut salaries - The Telegraph - 23.01.13

A freedom of information request shows that the BBC now pay 360 staff £100,000 or more. Only 310 employees were in the top tier salary bracket in January 2011. The rise comes despite Lord Patten, chairman of the BBC Trust, having told the Telegraph in July that he would cut the number of senior managers from around 530 to 200 by 2015, to put an end to the "toxic" issue of executive pay.


Ricky Tomlinson calls on government to lift 'veil of secrecy' on Shrewsbury 24 - The Guardian - 20.01.13

Building workers imprisoned in one of the most controversial cases involving trade unionists have been told that documents relating to the case will remain secret for another 10 years. The actor Ricky Tomlinson, who was one of the workers, is calling for the government to lift the "veil of secrecy" over the case and release all the relevant information. In a letter to campaigners Chris Grayling, the justice secretary, said that documents were being withheld under section 23 of the Freedom of Information Act, which relates to safeguarding national security. Mr Tomlinson said his co-workers were convinced that the Tory government of the time had been behind the prosecutions.


Hospitals took three years to do safety checks on NHS doctors and nurses - Mirror - 19.01.13

Doctors and nurses worked in the NHS without proper criminal record checks for as long as three years. Details of the CRB blunder at the Barts Health NHS Trust have emerged in a Freedom of Information report obtained by the Health Service Journal. It shows managers had been warned in October 2009 that procedures used to check the background of staff were inadequate.


Isles of Scilly finance director claimed 'extreme expenses' - BBC - 18.01.13

A senior council officer has defended claiming £18,000 in expenses in the year to April 2012, after the figure was revealed following a Freedom of Information request. The council's finance director admits the amount sounds 'extreme' but says that all claims are legal.


County rapped for keeping Hatfield incinerator emissions details secret - The Herts Advertiser - 17.01.13

The Information Commissioner's Office (ICO) has rebuked Hertfordshire County Council for withholding important information about emissions from an incinerator. In a recent ruling, made in response to request from campaigners under the Freedom of Information Act, the ICO has ordered the council to disclose information. The Council claimed that the information is commercially sensitive and would breach intellectual property rights if released to the public. The local authority has been given until mid-February to comply.


Freedom of Information laws widened by MSPs - Herald Scotland - 17.01.13

People will be given greater access to decisions taken by local authority arm's-length bodies providing cultural and leisure facilities after ministers agreed to extend Freedom of Information laws. Scotland's Deputy First Minister said there would also be a consultation on widening the legislation to cover other arm's-length external organisations established by councils to deliver services on their behalf. The Campaign for Freedom of Information in Scotland welcomed widening the ambit of the legislation but has called for access to be greatly increased, to apply, for example, to companies working on public sector contracts.


London ambulance handover waiting times at A&E 'rising' - BBC - 16.01.13

The number of ambulances waiting more than 30 minutes from arriving at hospital to handing over patients has gone up about 66% in the last year, according to figures obtained by Labour from a Freedom of Information request.


Ministers accused of exploiting royal veto to block embarrassing legislation - The Guardian - 15.01.13

Government ministers have exploited the royal family's secretive power to veto new laws as a way to quell politically embarrassing backbench rebellions, a former MP has claimed. Tam Dalyell, the sponsor of a 1999 parliamentary bill that aimed to give MPs a vote on military action against Saddam Hussein, said he is "incandescent and angry" that it was blocked by the Queen under apparent influence from Tony Blair's government. It also emerged that Harold Wilson used the Queen's power to kill off politically embarrassing bills about Zimbabwe and peerages. Detail about the extent of the Queen and Prince Charles' power to consent to or block new laws are emerging as a result of a freedom of information campaign by a legal scholar.


Britain facilitating mining firms' talks with repressive Eritrean regime - The Guardian - 15.01.13

The Government has been facilitating talks between a range of mining and investment companies and the Eritrean government, whose human rights record is castigated in a Human Rights Watch report that says companies rushing to exploit Eritrea's rich resources risk involvement with widespread exploitation of forced labour by the regime. Details of those who attended a meeting organised by the Foreign Office during a visit by officials from Eritrea were released under the Freedom of Information Act.


NHS trust failed to stop dangerous breast cancer operations - The Guardian - 15.01.13

An NHS Trust was warned in an internal report about the dangers of a controversial breast cancer procedure almost four years before it banned a "rogue" surgeon from continuing to use it. The confidential report obtained under the Freedom of Information Act reveals that senior management at the Heart of England NHS trust were alerted to a technique being used by its staff which could increase the risk of breast cancer returning.

Friday, February 01, 2013

The FOI Act is at risk!

Briefing meeting 2pm, 18 February 2013 

The Human Rights Action Centre, 17-25 New Inn Yard, London  EC2A 3EA (map)

The government is planning to amend the Freedom of Information Act to make it easier for authorities to refuse requests on costs grounds. This could have serious implications for requesters. 

At the moment, authorities can refuse requests if they estimate that the cost of finding and extracting the information exceeds certain limits, currently £600 for government departments or £450 for other authorities. The government wants to allow them to also include the cost of considering the request and deleting exempt information. New or complex issues, which are always likely to require significant consideration time may be refused in future, without the substantive issue ever being addressed. 

The government is also proposing to allow unrelated requests from one person or group of people to the same authority to be refused if their number is overly burdensome. This may involve resuscitating the Blair government's proposal to allow unrelated requests to be refused if their combined cost exceeded the limit for a single request. Local newspapers, which cover a range of different issues involving the same authority, could be among the first casualties of this proposal. The government is also considering reducing the cost limit itself. 

Ministers are also considering introducing charges for appealing to the Information Rights Tribunal - a measure likely to discourage many appeals from being made. 

The Campaign for Freedom of Information is holding a briefing meeting on Monday 18 February 2013 at 2 pm to discuss the proposals and what can be done about them.

If you would like to attend please RSVP to admin@cfoi.demon.co.uk or @CampaignFOI on Twitter. Please circulate details of the meeting to any friends or colleagues you think would be interested. The details are available from http://www.cfoi.org.uk/foi180213mtg.html

The Campaign's commentary on the government's proposals can be found at: