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.
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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.
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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.

Government's FOI reforms would block difficult requests

Government plans to amend the Freedom of Information Act would make it harder for requesters to obtain answers to new, complex or contentious FOI requests, according to the Campaign for Freedom of Information.

The government is proposing to make it easier for public authorities to refuse time-consuming requests. At the moment, authorities can refuse requests if they estimate that the cost of finding and extracting the information exceeds certain limits. The government wants to allow them to also include the cost of considering the request and deleting exempt information.

The Campaign is particularly concerned at the proposal to allow an authority to include its 'thinking time' in the cost calculations. The Campaign's director Maurice Frankel said: "The longer an authority needs to think about a request, the greater the chance of it being able to refuse to answer on cost grounds. Requests involving unfamiliar, complex or contentious issues all of which require substantial 'thinking time' would be likely to be refused under these proposals. This would prevent the Act from dealing with difficult issues or breaking new ground."

Many kinds of requests are only time consuming because they raise new issues. Once these have been worked through, and particularly once case law is available, decisions may be easy, the Campaign says. The government's proposals might prevent this happening by permitting such requests to be refused on cost grounds without ever addressing the issues they raise.

The Campaign also says estimates based on thinking time are likely to be subjective. "They may depend on the novelty of the issues to the authority, the FOI officer's experience and judgment. They may also be easily manipulated. Authorities may deliberately estimate that they would have to consult more officials than is strictly necessary in order to boost the consideration time and increase the chances of being able to refuse the request on cost grounds" said Mr Frankel.

The government is also proposing to allow the cost of unrelated requests made by the same individual or organisation to be aggregated so that all of them can be refused if the total cost exceeds set limits, currently £600 for government departments or £450 for other authorities.

The Campaign says local newspapers, which cover a range of different issues involving the same authority, would be the first casualties of this proposal. "A single request about school exam results might be enough to reach the cost limit. Thereafter the whole newspaper - not just the individual journalist - might be barred from making any further FOI requests to the authority for the next quarter, even on different issues such as child abuse, road safety or library closures" said Mr Frankel.

The government says it wants to address the problem of requests that are time-consuming to deal with but which authorities cannot refuse because the records are easily found. It also wants to address the 'industrial' use of the Act by some requesters who make disproportionate use of the Act. The Campaign says if these are the concerns, it should specifically target these situations - not change the rules across the board in ways that will block even modest use of the Act.

The Campaign is also concerned at the government's suggestion that charges might be made for appealing to the Information Rights Tribunal. It says these would deter requesters with well-founded cases from appealing against decisions that they would be likely to win.

The Campaign welcomed the government's decision not to introduce charges for FOI requests or to introduce additional exemptions to protect cabinet papers or sensitive policy discussions.

However, the government has rejected proposals to tighten up the time limits for responding to FOI requests which it says would add to the burdens on authorities. It has also refused to require authorities to publish their statistics on compliance with FOI time limits. The Campaign says it is disappointing that even this modest proposal has been rejected.

The government's proposals, published at the end of November are contained in its response to the Justice select committee's report into the operation of the Freedom of Information Act.

The Campaign has published a commentary on the government proposals.

Consultation on the new draft code of practice on datasets

The Cabinet Office is consulting on a new code of practice on the new provisions in the Freedom of Information Act inserted by the Protection of Freedoms Act that enhance the right to data. These new provisions on datasets will be commenced in April 2013. The Code of Practice (datasets) will sit alongside the existing Section 45 Code of Practice on the Freedom of Information Act.

The public have always been able to request datasets under the Freedom of Information Act however, provisions relating to their disclosure and re-use conditions have developed in a piecemeal way. The aim of the new provisions in the Act is to consolidate the complex landscape around the release of datasets for use and re-use and for this new code to make public authorities aware of their new responsibilities, to reduce potential confusion and bring clarity to what is expected of public authorities undertaking their new duties.

This new draft Code of Practice (datasets) aims to make it clear as to what is meant by the terms set out in the new provisions in the FOI Act. For example, what is meant by “an electronic form which is capable of re-use” or a “re-usable format” for the purposes of the Act. Over the last few months, the Cabinet Office has prepared this draft alongside the Ministry of Justice, the National Archives and the Information Commissioners Office. As committed to in the Open Data White Paper, we are now holding an online consultation to hear your views and comments on where the code can be improved or expanded upon so it provides the best guidance possible to public authorities who will in future rely on it as they carry out their new duties. 

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The new draft code also outlines the licensing framework in which public authorities must use when making their datasets available for re-use. Together with the Open Government Licence, which the draft code encourages public authorities to use, and the Non-Commercial Government Licence, a new licence has been drafted for potential use by public authorities that have reason to charge for the re-use of the dataset they hold or produce. This new licence, it’s working title the ‘Charged Licence’ will form a suite of ‘specified licences’ provided for in the new datasets provisions of the FOI Act. The National Archives today published the licence in beta form and alongside the consultation for the new Code of Practice (datasets) and they are interested in receiving comments on the licence as to whether the simplified terms and conditions adequately meet the requirements of licensors and re-users alike, as well as feedback on the working title of the new licence.

The consultation ends on 10th January 2013. Responses can be submitted online or sent to transparency.strategy@cabinet-office.gsi.gov.uk

Comments on the beta licence should be sent to the Information Policy Team at the National Archives at psi@nationalarchives.gsi.gov.uk by 10 January 2013.

Government appealing ruling on disclosure of 20+ year old Rowntree takeover papers

The Government are reported to be seeking to appeal against the recent decision by the Information Rights Tribunal (Cabinet Office v IC, EA/2011/0263) ordering the disclosure of information relating to the controversial takeover of Rowntree Mackintosh by Nestle in 1988. At the time of the request the disputed information was at least 22 years old.

The decision to appeal is illogical given the Government's decision to proceed with reducing the "30 year rule" to 20 years. The decision to move to a 20 year rule was taken by the previous Labour Government, following a review by Paul Dacre. The Coalition Government confirmed it would go ahead with the policy on 7 January 2011.

Lord McNally recently announced that the Government intended to start implementing the change in 2013, with two years' worth of records being transferred to the National Archives every year until the transition is complete in 2023. He also confirmed there would be a corresponding reduction in the maximum lifespan of a number of FOI exemptions including section 35. He said:

The change to a "20-year rule" is a key part of our Transparency Agenda and will see a wealth of historical material opened to the public much earlier than under current arrangements. The aim is to provide greater openness and accountability, strengthening democracy through more timely public scrutiny of government policy and decision-making. 

Yet the Cabinet Office is now seeking to appeal a decision ordering the disclosure of information from 1988, even though the Government has accepted that 20 year old policy discussions should not be exempt.

The Cabinet Office refused to disclose five documents about the takeover under sections 35(1)(a) and (b) citing the need to protect collective responsibility. It also refused to even confirm or deny whether the takeover had been discussed by the cabinet. However, the Tribunal concluded the public interest favoured disclosure of the information:

71. We accept that government must be given a protected safe space for policy formulation and development. However in the circumstances of this case we find that there is very little evidence that merger policy or the Ministerial Code were under active policy review during the time period. In any case merger policy is very different today to that in 1988. Therefore we find the need for a safe space was diminished and accordingly the weight we should attribute to this public interest factor.

73. In contrast the public interest in transparency and openness in this case seems to us to be very weighty indeed. This is not only for the reasons given by the Commissioner and Mr Aitchison [the requester], and the likely continuing consequences for employment in the confectionary industry in York. There is also a weighty public interest in knowing that when a Minister of the Crown is charged with exercising a quasi-judicial function (as was the case with the decision which fell to Lord Young to take about the takeover of Rowntree), the quasi-judicial role of the decision maker was not compromised by improper political or other pressures.

Draw your own conclusions!

Slow progress on coalition's commitment to extend FOI

Although the coalition government is committed to extending the scope of the Freedom of Information Act, the process is turning out to be excruciatingly slow.

Before the 2010 election the Conservatives promised to extend the FOI Act to additional bodies "within weeks of the General Election". A consultation was announced by the Ministry of Justice on 7 January 2011, but two and a half years after the election, a decision on the outcome is still not close.

A recent parliamentary question by Stewart Jackson MP asked what progress had been made extending the Act to registered providers of social housing. The minister's answer revealed that consultation with these bodies is yet to even begin, despite Grant Shapps, the former housing minister, promising back in June 2011 they would be consulted later that year. It also confirmed that it could be spring 2015 before the extension of FOI to bodies with public functions is complete.

Last year, the MoJ disclosed further details about which bodies it is consulting about coverage following a FOI request by the Campaign. Someone else asked for the responses received by the MoJ from those bodies, but the MoJ refused that citing the exemption for information relating to the formulation or development of government policy. The Information Commissioner recently upheld the department's refusal to disclose the responses on the grounds that the policy process was still live at the time of the request. The Commissioner's decision cites the strong weight that should be attached to 'safe space' arguments and, to a lesser extent, the 'chilling effect', as the two reasons for his finding that the public interest favoured withholding the information, despite the fact that the disputed information involved third party information and not the advice of officials.

In contrast, the Ombudsman in New Zealand has just published a case note on a complaint where she found there was no good reason to withhold responses to a government consultation exercise which were still under active consideration under the Official Information Act (h/t Andrew Ecclestone):

Ombudsmen have rejected the argument that premature release of public submissions would impede the subsequent development and consideration of policy advice by officials and Ministers. Disclosure of submissions cannot pre-empt or prejudice the ability to consider later advice that may in part be based on the submissions. Officials remain free to advise Ministers (and Ministers to advise Cabinet) about the merit or lack of merit in particular submissions as they see fit, and to offer such additional advice as they deem appropriate. 

It's clear that section 5 is not the appropriate mechanism for resolving anomalies in the legislation's coverage, given the time it takes. Last year the Campaign worked with Lord Wills on an amendment to the Localism Act which would have brought the Housing Ombudsman under FOI, though the amendment was not accepted. From 1 April 2013, the Housing Ombudsman's jurisdiction will be extended to all social housing in England. The government is consulting the Ombudsman on FOI coverage and the Service's website says it "will follow the terms of the Act voluntarily whenever possible". But judging by the minister's answer it will be several years yet before requesters have a legally enforceable right to obtain information from it.

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.

Campaign makes FOI request about Government's plans to extend the FOI Act

During Justice Questions in the House of Commons on 8 November 2011, the Minister was asked about the Government's plans to extend the Freedom of Information Act.

Simon Wright (Norwich South) (LD): What plans he has to increase the scope of the Freedom of Information Act 2000.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): This month we extended the Freedom of Information Act to a further three bodies—the Association of Chief Police Officers, the Financial Ombudsman Service and UCAS. Additionally, we intend to extend the Act to over 100 more organisations through the Protection of Freedoms Bill. We have also begun consultations with more than 200 further bodies about their possible inclusion. Next year we plan to consult 2,000 housing associations and the housing ombudsman.

Simon Wright: I thank the Minister for his response and for the progress made by his Department. As he knows, Network Rail is responsible for spending billions of pounds of public money each year. Will he ensure that that organisation is brought within the scope of the Freedom of Information Act?

Mr Djanogly: The Government are committed to making Network Rail more accountable to its customers, and believe that there is a strong case for its inclusion in the FOI.

The Ministry of Justice (MoJ) news release 'Opening up public bodies to public scrutiny' on 7 January 2011 named some bodies it planned to consult about coverage. But as far as the Campaign for Freedom of Information is aware, the names of "more than 200 further bodies" the minister referred to have not been made public. Neither have the names of the bodies the MoJ has identified as being caught by the extension in the definition of 'publicly owned company' in the Protection of Freedoms Bill. We have therefore made a FOI request to the MoJ for details of these organisations.

The fact that the Housing Ombudsman is being consulted is welcome. The Campaign worked with Lord Wills on an amendment to the Localism Bill which would have brought the Ombudsman under FOI, but the Government did not support it (see earlier post). The Ombudsman and Network Rail were also raised along with other examples of bodies that are candidates for designation by Richard Shepherd MP during a debate on The Freedom of Information (Designation as Public Authorities) Order 2011 (see earlier post). 

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.

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.

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.

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.

FOI amendments pressed during Localism Bill

The Campaign for Freedom of Information has been working on amendments to the Localism Bill tabled by Lord Wills, the former Labour FOI minister. The amendments sought to:

1) Require local authority executives and their committees to meet in public, unless regulations specify otherwise. The Localism Bill amends the arrangements for local authority governance, allowing councils to return to the committee system should they choose to do so. For authorities which operate executive arrangements, the Bill allows for new regulations to be made governing the circumstances in which meetings and documents must be open to the public (Clause 11 of the Localism Bill gives effect to Schedule 2 which inserts a new Part 1A into the Local Government Act 2000, and the proposed section 9GA(4) of that new part provides for these regulations to be made). But if the regulations are not made before the new arrangements come into force, the Bill would leave it to executives themselves to decide which of their meetings will be open to the public and which will be held in private (Sections 9G(1) and (2) of the new part 1A). They would be free to hold all their meetings in private, should they choose to do so. The amendment sought to reverse this position, so that in the absence of regulations, all meetings of the executive or its committees would have to be in public.

2) Ensure that future contracts entered into by local authorities would include a ‘freedom of information’ provision. This would stipulate that all information about the performance of the contract which is held by the contractor would be deemed to be held 'on behalf of' the authority for the purpose of the Freedom of Information Act or Environmental Information Regulations. The ‘Community Right to Challenge’ in Chapter 3 of the Localism Bill envisages that a growing proportion of local authorities’ functions will be carried out for it by other bodies. The intention of the amendment is that the public’s rights to information should be the same, whether a particular task is carried out in-house or contracted out.

3) Bring companies that are 50% or more owned by local authorities within the scope of the FOI Act. 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. However, a company which jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. The amendment would bring such companies within the Act’s scope.

4) Require local authorities to publish annual statistics on their compliance with the FOI Act.

5) Bring the Housing Ombudsman within the scope of the FOI Act. 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 to 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.

This transfer of functions, may be accompanied by a strengthening of the Housing Ombudsman’s enforcement powers. The Bill allows the Secretary of State by Order to give the Housing Ombudsman the power to make determinations which have the force of a court order (New paragraph 7C, which would be added to Schedule 2 of the Housing Act 1996 by clause 158 of the Localism Bill). 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. The amendment would redress this anomaly.

The amendments were debated during the second day of the Bill’s committee stage on Thursday 23 June 2011. Responding to the debate, the minister Baroness Hanham gave a reassurance that the Government would make it clear there is a presumption of openess regarding meetings of local authority executives. But she did not support any of the other amendments.

I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed – for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness… 

We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.

Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that this is a burden that should be borne...

Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.

In reply, Lord Wills pressed the minister to consider the amendments again in more detail.

I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors or businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.

I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments…that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.

Read the full debate on the amendments here (begins Col 1433).

See also:
Localism Bill Explanatory Notes [HL Bill 71] ) (pdf)
Second Marshalled List of Amendments as at 21 June. Lord Wills' amendments were 52A, 133A, 133B, 133C and 181A.

Public Accounts Committee says Network Rail should be subject to FOI Act

A report by the Public Accounts Committee 'Office of Rail Regulation: Regulationg Network Rail's efficiency' published today, calls for the Department for Transport and Office of Rail Regulation to ensure that Network Rail is made subject to the Freedom of Information Act. The report states:

The internal operations of Network Rail are not transparent. We are concerned about Network Rail’s use of ‘compromise agreements’ with departing employees, and that a review by the Regulator has been required to investigate the delayed disclosure by Network Rail of an issue regarding level crossing safety. We are concerned that Network Rail was not able to tell us the total value of compromise agreements it had entered into. The Department and the Regulator should ensure that Network Rail is subject to the same transparency requirements as public bodies, with full application of the provisions of the Freedom of Information Act.

It also says:

Pursuing the issue of transparency, we noted press reports of an internal Railtrack memorandum from 2001 regarding safety at the Elsenham level crossing, an issue which had not been made public until 2006. The matter is currently the subject of review by the Regulator, who will judge whether it was material to the public interest and was withheld deliberately. Network Rail is not currently subject to Freedom of Information legislation, but told us that it would not object to being included within the scope of the Act in future.

Does this mean Network Rail has had a change of heart? David Higgins, who took over as Chief Executive of Network Rail in February 2010, told the Committee he would have no objection to members of the public being able to make FOI requests adding that he had "been used to FOI in the last two jobs I have had".

Before the election both the Conservatives and Liberal Democrats promised Network Rail would be covered by FOI.  In April 2010, the Conservatives published 'Big ideas to give Britain real change in politics', which stated:

A Conservative government will increase the range of publically funded bodies that are subject to scrutiny using Section 5 orders under the Freedom of Information Act. These bodies will include:

• Network Rail

• Northern Rock;

• The Carbon Trust;

• The Energy Saving Trust;

• NHS Confederation (in relation to activities in receipt of public funds);

• Local Government Association; and

• Traffic Penalty Tribunals

Section 5 of the Freedom of Information Act enables Secretaries of State to designate organisations that appear to exercise functions of a public nature to scrutiny under the legislation. We will extend the Freedom of Information Act to these organisations within weeks of the General Election.

But an announcement in January 2011 that the Government would extend the FOI Act to additional bodies did not include Network Rail, a decision which the Campaign for Freedom of Information expressed disappointment about.

See also:
We need a regulator with teeth to force efficiencies at Network Rail, says MPs - The Times, 12 July 2011 (subscription)
Network Rail chief in push for openness - FT, 27 Feb 2011

Evidence to Protection of Freedoms Bill Committee

The Information Commissioner and Campaign for Freedom of Information gave oral evidence to the Protection of Freedoms Bill Committee on 24 March 2011. You can watch a recording of the evidence session here.

A note submitted to the Committee setting out the Campaign's views on the Bill is available here. The Information Commissioner's written evidence to the Committee is here.

Campaign welcomes FOI changes in Protection of Freedoms Bill but calls for them to be extended

The Campaign for Freedom of Information has welcomed the changes to the Freedom of Information Act set out in the Protection of Freedoms Bill, published today.

Requiring public authorities to publish data sets proactively, under the ‘publication schemes’ that all authorities are required to have under the Act, was a positive step, the Campaign said. It was also helpful that when applying for datasets applicants would be entitled to specify that they be released in a reusable electronic format. The Campaign said that should prevent authorities deliberately turning a spreadsheet into a pdf, before releasing it, to stop requesters running their own analyses of the spreadsheet itself.

However, the Campaign said the Act’s provisions on the form in which information should be released needed further improvements, to allow requesters to specify that they wanted photocopies of original documents. At present, requesters can only express preference between obtaining information in hard copy or electronic form or inspecting records but are not entitled to specify that they want photocopies of actual correspondence or documents.

The new Bill also seeks to prevent authorities invoking copyright to prevent requesters republishing datasets released under the Act, where the authority is the copyright holder. The Campaign said this was a positive step which should be extended beyond datasets. Authorities frequently insist that requesters apply to them for a copyright license to reproduce information about the authorities’ own policies and performance. It said this was an unnecessary restriction which obstructs the use of information which has no commercial value to the authorities themselves.

The Campaign also welcomed the decision to bring companies that are jointly owned by several public authorities under the Act.

Campaign's response to Government's plans to extend the FOI Act

The Campaign for Freedom of Information has welcomed the coalition government’s announcement (see earlier post here) that it proposed:

• to extend the FOI Act to a range of regulatory, representative and other bodies 
• to implement the last government’s measures to release old government records after 20 years instead of 30 years
• apply the Act to companies that are jointly owned by more than one public authority.

The Campaign said these were valuable improvements to the FOI regime.

However it pointed out that before the election both the Conservatives and Liberal Democrats had promised that Network Rail would be covered and that the Conservatives’ had also promised to cover Northern Rock. Neither body is being covered. Many other individual bodies, including electoral registration officers and returning officers should also be added, the Campaign said.

It also called for companies providing contracted out functions to be brought under the Act, particularly those relating to health, social services, education and criminal justice and for the Act to be extended to housing associations. The Campaign pointed out that the Scottish Government was proposing to extend the Scottish FOI Act to contractors who build or maintain schools, hospitals and roads (where the contract value is above certain thresholds), to private bodies running prisons or providing prison escort services to contractors running local authority sports or leisure centres and to the Glasgow Housing Association.

The Campaign said it was also unhappy at the decision to implement a more restrictive exemption for senior members of the Royal Family. At present, communications with the Royal Family are exempt, but potentially disclosable on public interest grounds. In future the public interest test will be removed for communications with the monarch and the next two in line to the throne. The Campaign said that where Prince Charles was seeking to actively intervene in policy decisions, his input would be withheld in all circumstances, even if it had played the decisive role.

Finally, the Campaign suggested the proposal to allow the Information Commissioner to serve for only a single 5 year term was a potentially double-edged sword. Limiting appointment to a single term only meant that the Commissioner could not be tempted to comply with the government’s wishes in order to be reappointed. But appointing a new Commissioner every 5 years could be potentially disruptive, as a new Commissioner needed at least a year to master the brief, and the Campaign suggested the Commissioner’s term of appointment should be extended to 6 or 7 years.

Full press release here.

Government plans to extend the FOI Act

The Ministry of Justice has announced plans to extend the scope of the FOI Act. The plans include:

increasing the number of organisations to which FOI requests can be made, bringing in bodies such as the Association of Chief Police Officers, the Financial Services Ombudsman, and higher education admissions body UCAS; and also all companies wholly owned by any number of public authorities

consulting on bringing a range of further bodies which are believed to perform functions of a public nature under the FOI umbrella, including Examination Boards, Harbour Authorities, the Local Government Association and the NHS Confederation

making most public records available at The National Archives and other places of deposit ten years sooner, when they are 20 years old; the package will also reduce the time some types of information - including court records, ministerial correspondence and policy formulation - can be withheld, to 20 years instead of 30

undertaking post legislative scrutiny, to see how well the Act is working in practice and whether there are further changes to be made.

The full press release is here and response issued by the Information Commissioner's Office here. Further comment to follow later today.

Royal Family and FOI - the state of play

The Daily Mail has reported that there is a dispute within the coalition government over the extent to which the Royal Family are subject to the Freedom of Information Act:

The Queen is at the centre of a Government row over proposed moves that would give the public sweeping rights to demand secret information.

The Liberal Democrats have been incensed by Conservatives’ attempts to restrict a new ‘right to data’ law so that it excludes the Royal Family.

The new open access law, which was secured by the Lib Dems as part of the Coalition agreement, would extend the freedom of information rules, which have unearthed scandals such as last year’s furore over MPs’ expenses.

But after lobbying from Buckingham Palace – which is worried that it would lead to a rash of fresh revelations – the Justice Ministry has proposed a blanket ban on the release of details about the Royals.

At present, the Royal Family itself is not covered by the FOI Act. Where government departments and other public authorities hold communications with Royal Family, that information is subject to the Act and potentially disclosable.

Section 37(1)(a) of the Act provides an exemption for communications with Her Majesty, other members of the Royal Family or with the Royal Household, but the exemption is currently a qualified one subject to the Act's public interest test.

The Information Commissioner has issued a series of decisions involving requests for correspondence or lists of correspondence with the Prince of Wales.  In each case to date, the Commissioner has supported the government department’s decision not to release the information, finding that the balance of public interest favoured confidentiality (see, for example, Department for Business Innovation and Skills FS50080233) These decisions were based not only on the Royal Family exemption (s.37(1)(a)) but also on the exemptions for personal data (s 40) and breach of confidence (s 41).

However, the Commissioner has ordered information about the cost of maintaining the Royal palaces to be disclosed on public interest grounds (see FS50154684). The Department for Culture, Media and Sport appealed this decision to the Information Tribunal, though it has now disclosed the information.  

The Constitutional Reform and Governance Act 2010, which received Royal Assent on 8 April 2010, amended Section 37 of the FOI Act to create a new absolute exemption for communications with the monarch, heir to the throne and second in line. The effect of the amendments will be:

• to exempt information relating to communications with the monarch, the heir to the throne and the second in line to the throne (i) till 5 years after the individual’s death, or (ii) for 20 years, whichever is later.

• that this exemption would no longer be subject to the Act’s public interest test, so there would be no possibility of disclosure on public interest grounds during the specified time limit.

• 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 still apply.

These amendments, together with those to reduce the 30 year rule to 20 years, also contained in the Constitutional Reform and Governance Act, require a statutory instrument to be brought into effect. The Daily Mail report suggests the government are now considering whether to implement the changes. Implementing the changes to the exemption for Royal communications would, however, breach the coalition government's commitment to extending the scope of the FOI Act (see earlier post here).

Meanwhile, a Guardian appeal to the Tribunal against a decision by the Commissioner upholding the withholding of Prince Charles' letters to ministers was adjourned until the new year for reasons the Tribunal panel could "not go into". And the Commissioner recently referred to the unimplemented changes to Section 37 in a decision where he upheld the Ministry of Justice's refusal to release representations made by the Queen or Royal Household regarding the FOI Act itself:

These changes will, when brought into force, result in communications with the Sovereign, the Heir to the Throne and the second in line to the Throne becoming absolutely exempt from disclosure under the Act....

In the circumstances of this case the Commissioner recognises that there is significant interest in, and debate surrounding, the proposed changes to the Act, which are likely to have a direct bearing on the future release of communications with the Royal Family and the Royal Household.

Interestingly, the MoJ did confirm that it held information relevant to the request. However, the Commissioner found the balance of public interest favoured withholding the information:

The Commissioner accepts that the information consists of communications which fall within the heart of government, being correspondence from or on behalf of The Queen to the public authority. Accordingly, he again concludes that it would not be in the public interest for the operation of the established convention of confidentiality to be undermined. Furthermore, he accepts that disclosure of the information covered could undermine The Queens’ political neutrality and, as noted above, he accepts that it is inherent in the exemption contained at section 37(1)(a) that it is in the public interest for the political neutrality of all members of the Royal Family to be preserved. However, the Commissioner would like to clarify here that he is not suggesting that this exemption is, effectively, ‘absolute’ and that there may be cases where the public interest balance would be different if there was an equally weighty public interest in disclosure.

The effect of the recent amendments of course would be to prevent such disclosure on public interest grounds taking place.

See also:
Explanatory Notes to the Constitutional Reform and Governance Act here.

Coalition programme for government on FOI and government transparency

'The Coalition: our programme for government' document published this morning (20 May 2010) promises to introduce a Freedom Bill and repeats the commitment to extend the scope of the Freedom of Information Act made in the earlier Coalition Agreement and by the both parties.

A Freedom Bill was promised in the Lib Dem manifesto. A draft Freedom Bill published by the Lib Dems last year contained a number of proposals to strengthen the FOI Act such as removing the ministerial veto. See http://freedom.libdems.org.uk/the-freedom-bill/17-strengthening-freedom-of-information/

The Coalition document also contains the 'right to data' and the proactive publication proposals from the Conservative manifesto. The relevant extracts of the document are:

3. CIVIL LIBERTIES
We will be strong in defence of freedom. The Government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness.

• We will implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion.
• We will introduce a Freedom Bill.
• We will scrap the ID card scheme, the National Identity register and the ContactPoint database, and halt the next generation of biometric passports.
• We will outlaw the finger-printing of children at school without parental permission.
• We will extend the scope of the Freedom of Information Act to provide greater transparency.
• We will adopt the protections of the Scottish model for the DNA database.
• We will protect historic freedoms through the defence of trial by jury.
• We will restore rights to non-violent protest.
• We will review libel laws to protect freedom of speech.
• We will introduce safeguards against the misuse of anti-terrorism legislation.
• We will further regulate CCTV.
• We will end the storage of internet and email records without good reason.
• We will introduce a new mechanism to prevent the proliferation of unnecessary new criminal offences.
• We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.

...

16. GOVERNMENT TRANSPARENCY
The Government believes that we need to throw open the doors of public bodies, to enable the public to hold politicians and public bodies to account. We also recognise that this will help to deliver better value for money in public spending, and help us achieve our aim of cutting the record deficit. Setting government data free will bring significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites.

• We will require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials paid more than the lowest salary permissible in Pay Band 1 of the Senior Civil Service pay scale, and organograms that include all positions in those bodies.
• We will require anyone paid more than the Prime Minister in the centrally funded public sector to have their salary signed off by the Treasury.
• We will regulate lobbying through introducing a statutory register of lobbyists and ensuring greater transparency.
• We will also pursue a detailed agreement on limiting donations and reforming party funding in order to remove big money from politics.
• We will strengthen the powers of Select Committees to scrutinise major public appointments.
• We will introduce new protections for whistleblowers in the public sector.
• We will take steps to open up government procurement and reduce costs; and we will publish government ICT contracts online.
• We will create a level playing field for opensource software and will enable large ICT projects to be split into smaller components.
• We will require full, online disclosure of all central government spending and contracts over £25,000.
• We will create a new ‘right to data’ so that government-held datasets can be requested and used by the public, and then published on a regular basis.
• We will require all councils to publish meeting minutes and local service and performance data.
• We will require all councils to publish items of spending above £500, and to publish contracts and tender documents in full.
• We will ensure that all data published by public bodies is published in an open and standardised format, so that it can be used easily and with minimal cost by third parties.