Tribunal rejects Whitehall approach to 'meta-requests'

The Information Tribunal has rejected a Home Office and Ministry of Justice appeal on the issue of whether FOI requests about other requests (known as 'meta-requests' in Whitehall) can be refused as a whole under s.36 of the FOI Act. The appeal related to a request by Matthew Davis of John Connor Press Associates for internal communications within government departments in relation to FOI requests made by himself or his company. The Tribunal decision notes that Mr Davis believed requests from his company were being treated differently to other members of the public.

In evidence, the Home Office stated ""meta-requests" such as the one in this case are a good example of an arguably permissible, but irresponsible use of the Act." However, the Tribunal found that there is no basis in the FOI Act for treating meta-requests as a special category.

"Although we accept that the Appellants are not asking us to treat s.36 as if it can be applied as an absolute exemption in the context of meta-requests, we do find that the Appellants' approach is to invite us to treat meta-requests as a special category of requests. We agree with Ms Proops [counsel for the ICO] that there is no basis under FOIA for us to do that and that there is no separate class of request, which has been called the 'meta-request' in this case. We consider that Parliament intended that meta-requests should be dealt with in the same way as any other requests otherwise Parliament would have provided for this, which in our view they have not done so."

"We have considered all the public interest factors in the circumstances of the way s.36 exemption has been applied in this case and find that the IC has not erred in deciding that the public interest in maintaining the exemption in s.36 does not outweigh the public interest in disclosure of the information requested as a whole. We have given strong weight to the public interest in knowing that public authorities deal with FOI requests properly and lawfully and do not discriminate against requesters or between requesters...It is vital to be seen to show that the fundamental compliance processes of the Act are being observed."

"We would observe that the Tribunal can appreciate the particular concerns that some meta-requests could pose for public authorities. However as Ms Proops indicates FOIA provides a number of mechanisms for dealing with such concerns should they arise...Public authorities need to appreciate that if the exemptions under ss.9, 12 and 14 cannot be claimed then it will be necessary to review the request in detail to decide whether any Part II exemptions can be claimed."

The Tribunal also found that it was not prepared to allow the late claiming of other exemptions in this case, except where s.40(2) had been claimed.

Home Office and Ministry of Justice v IC EA/2008/0062

New Report Reveals Counter-Terrorism Effects on Media in Europe

Privacy International
For Immediate Release
25 November 2008

A new report conducted by Privacy International for the Council of Europe Media and Information Society Division reveals effects of new counter-terrorism laws on media and free expression rights in European countries. The report “Speaking of Terror” examines how the “war on terror” has affected access to information, the growth of incitement, glorification and “extremism” restrictions on speech, blocking of internet sites, increased surveillance of journalists and limits on protection of journalists’ sources. The report finds that the laws have already seriously affected freedom of expression while providing little benefit in fighting terrorism.

The report also examines the roles of the United Nations Security Council, European Union and Council of Europe in promoting new laws while paying little attention to human rights.

Summary of findings:

International bodies including the Council of Europe (CoE) and the European Union (EU) have adopted many international agreements that either ignore or only pay scant attention to fundamental human rights and the importance of a free media. Their agendas are often driven by those countries that are most aggressive in adopting expansive counter-terrorism laws including the UK, US and Russia. The role of European institutions such as the EU and the CoE have resulted in greater adoption and harmonization of these laws than most other regions.

New laws on prohibiting speech that is considered “extremist” or supporting of terrorism have been a particular problem. These laws are used in many jurisdictions to suppress political and controversial speech. Newspapers have been closed and journalists arrested. Web sites are often taken down or blocked.

State secret and national security laws are regularly being used against journalists and their sources even as access to information laws are widely accepted and adopted across the CoE. There are also growing restrictions imposed on photographers not based in law.

Protection of journalists’ sources are often undermined by governments seeking to identify officials who provide information even though they are widely recognized both in national laws and in decisions of the European Court of Human Rights. Newsrooms are often searched.

New anti-terrorism laws are giving authorities wide powers to conduct surveillance. Other new laws impose technical and administrative requirements on the ability to intercept communications and keeping information. Of particular concern are data retention laws which require the routine surveillance of all mobile and Internet users that can be used to easily identify sources and journalists' investigations.

“Speaking of Terror: A survey of the effects of counter-terrorism legislation on freedom of the media in Europe” is available here.

For more information, contact:

David Banisar, Director, FOI Project, Privacy International
privacyint@privacy.org, +44 (0)208.123.7933

Privacy International website

Cabinet secretary's evidence in Iraq cabinet minutes appeal

Sam Coates, The Times' chief political correspondent, has posted a transcript of Sir Gus O'Donnell's evidence before the Information Tribunal on his blog The Red Box.

Gus O'Donnell on leaks, secrecy and why Alastair Campbell was wrong to publish his diaries

In a drab office block in Southwark yesterday civil service head Augustine Thomas O'Donnell - Sir Gus to most - took the witness stand at the Information Tribunal to argue why minutes of Cabinet discussions before the invasion of Iraq in March 2003 should not be released.

For FOI watchers and civil service nerds, I've posted as full a transcript as was possible below.

Defending his decision not to release the documents in an age where confidential Cabinet discussions are "frequently" (his word) leaked in memoirs, biographies and in the media, he took aim against Alastair Campbell for his diaries The Blair Years.

I made clear to Alastair in the letter I wrote that I very much regret this book is being published at all. I was against it. I thought that it was wrong of someone in the position of Alastair to be publishing what he did. It’s one thing for ministers, another for special advisers.

Read the entire transcript on Sam's blog.

Parliamentary debate on the Information Commissioner's salary

The House of Commons has approved a motion to increase the Information Commissioner's salary from £98,000 to £140,000 a year which will be backdated to November 2007. During the debate, the issue of delays in the ICO's investigation of FOI complaints was raised by MPs.

Simon Hughes (North Southwark and Bermondsey) (LD): I am hoping that because his office and his salary are being debated in the House of Commons, the commissioner will understand that one of the consequences of a pay rise backdated by 12 months is that he must deal with the one fundamental weakness of his office, which is the backlog of work.

I am told that in the last year the commissioner had nearly 25,000 inquiries and complaints, and that he prosecuted 11 individuals and organisations and received just over 2,500 freedom of information complaints and closed about the same number. However, although 30 per cent. of the decisions were in favour of the complainant and 25 per cent. upheld public authorities’ original decisions, only 13 per cent. of valid cases were closed within 365 days. As he is to be given a vote of confidence by the House, I hope that those figures will give him cause to reflect on whether he should insist on the resources to support him. Those resources would come from the Government, and I hope that the Secretary of State will respond to that.

Colleagues, including my persistent hon. Friend the Member for Lewes (Norman Baker), tell me that there are regularly delays of one year, two years, or two and a half years.
...
Mr. Shepherd (Aldridge-Brownhills) (Con): Although the salary of £140,000 does not look great in comparison with those of local authority chief executives, BBC executives and so on, we have to pursue the question raised by the hon. Members for North Southwark and Bermondsey and for Wolverhampton, South-West (Rob Marris).

What has happened? There is a serious problem—the problem of delays. Is that the responsibility of someone whom I have always regarded as a fine public servant with a fine sense of public ethos? The statistics tickled out by the hon. Member for North Southwark and Bermondsey are important...

A snapshot of the problem can be seen from the brief analysis that the Campaign for Freedom of Information carried out into decision notices published by the Information Commissioner during September 2008. Of those, 20 specifically identified the date on which the requester complained to the Information Commissioner’s office. As we have been told, in the longest decision there were 32 months between the date on which the requester complained to the Information Commissioner and the date on which the decision was issued. The next longest took 30 months, the third longest took nearly 27 months and the fourth and fifth longest decisions took 26 months. Only six of the 20 cases were dealt with in less than 12 months.

...In 2007, the Information Commissioner’s office’s objective was to deal with 80 per cent. of freedom of information complaints within 365 days, indicating that it expected to take more than a year in 20 per cent. of cases. However, according to the Information Commissioner’s office’s corporate plan for 2008 to 2011, that target has been reduced; the current target is to deal with 70 per cent. of FOI complaints within a year. The new target therefore assumes that 30 per cent. of complaints will now take more than a year.

Read the full debate

Top civil servant to fight release of Iraq war records

The Times
November 24 2008
Sam Coates, Chief Political Correspondent

Sir Gus O’Donnell, the head of the Civil Service, will lead the Government’s last-ditch attempt to block the release of minutes of Cabinet meetings in the run-up to the war in Iraq, The Times has learnt.

No 10 has been ordered by Richard Thomas, the Information Commissioner, to release copies of Cabinet minutes and records relating to meetings held between March 7 and 17, 2003.

Details of the meetings, during which the Attorney-General’s legal advice on the war was discussed, could reveal the positions of individual Cabinet ministers and the strength of internal opposition before the March 20 invasion.

The Cabinet Office is fighting the decision because it believes that a vital principle of government is at stake – the right to have private discussions. Ministers argue that releasing the documents could end hundreds of years of confidential Cabinet discussions and undermine collective Cabinet responsibility, where ministers must defend policies in public that they may not agree with in private.

...To prevent the disclosure, the Government is relying on two provisions in the freedom of information legislation that should block the release of documents relating to “formulation of government policy” or “ministerial communications”.

However, when the legislation was drawn up by Jack Straw in 2000, he decided that this ban could be overridden if the public interest arguments were strong enough .

Full story

Revealed: how minister cashed in on contacts

The Sunday Times
November 23, 2008

Insight: Jon Ungoed-Thomas, Jonathan Calvert, Andy Rowell and Georgia Warren

The former transport minister Stephen Ladyman has been using his parliamentary office to lobby officials for contracts for a private company.

Documents obtained under freedom of information laws show that the Labour MP touted for the business on behalf of ITIS Holdings, a transport company that pays him £1,000 a month.

Ladyman used his House of Commons address and e-mail when requesting meetings with officials on behalf of ITIS, which is chaired by a former Labour donor.

One of the letters, seeking Olympic work from London’s transport commissioner, begins: “You may remember me from my time as minister of state for transport.”

He also sent an e-mail to an official at the Highways Agency saying he was not permitted to lobby because it was less than a year since he had left the government. Despite this, the e-mail urges the agency to do business with ITIS.

Ladyman is one of about 25 former Labour ministers who have accepted jobs in the private sector since 2006, but he is the first to admit using his ministerial contacts to arrange meetings in Whitehall for clients.

Full story

FOI podcast, articles and workshops

Ibrahim Hasan has asked me to post the following:

FOI podcast
Ibrahim Hasan has just published episode 15 of the FOI Podcast. In September and October 2008 the Information Commissioner published thirty three decisions whilst the Information Tribunal published eleven.

In this episode, amongst others, he will be discussing decisions on:

* Information held on behalf of coroners
* Section 21 and information held by a court
* Disclosure of information about statutory inquiries
* OFSTED inspectors’ notes
* A request for information about Government Information Sharing initiatives
* Disclosure of Employment Tribunal details
* Drug testing methodologies
* AND when information about residential care homes can be disclosed under section 43

To listen please go to: http://www.informationlaw.org.uk/page10.htm

----------------
FOI Update workshops

Ibrahim will be discussing these and other latest FOI decisions during his forthcoming FOI workshop in Manchester and London.

FOI Update: Exemptions and the Public Interest Test:

For details: http://www.actnow.org.uk/courses/Freedom_of_Information
-------------------------

Latest FOI Articles

FOI Update of ICO and IT decisions
FOI, Outsourcing and Shares Services

See: http://www.informationlaw.org.uk/page13.htm

Procurement information

The Ministry of Justice has published updated guidance for public authorities on how to treat requests for information on different phases of the procurement process.

Freedom of information guidance - procurement working assumptions

Announcement regarding extension of coverage of FOI(S)A

The Scottish Government has today (17 November 2008) published a discussion paper on the possible extension of the Freedom of Information (Scotland) Act. The paper seeks views on whether the Scottish Government should use the powers under section 5 of the FOISA to extend coverage of the Act to:

• Contractors who provide services that are a function of a public authority
• Registered social landlords
• Local authority trusts or bodies set up by local authorities
  

Responses are invited by 12 January 2009.

The Minister for Parliamentary Business, Bruce Crawford explained:

"The organisations we are looking at in terms of coverage have not been chosen at random. They are bodies about whom concerns over a lack of coverage have consistently been raised with us. The concerns may have arisen because of changes in the way public services are delivered - for example the contracting out of services traditionally provided directly by a public authority.

"Discussions will take place before any decision is taken to formally consult. But formal consultation is not a rubber-stamping exercise. Any extension of coverage needs to be measured and appropriate."

Mr Crawford also announced that the Government would be pro-actively publishing Ministerial car travel and diary information. In addition, the Minister announced the publication of the latest Scottish Government Annual Report on request handling.

See
Discussion Paper - Coverage of the Freedom of Information (Scotland) Act
Freedom of Information Annual Report January-December 2007
News release 17/11/08

The exemption for personal information - updated ICO guidance

The Information Commissioner's Office has published updated guidance on the exemption for personal information in section 40 of the FOI Act.

Personal data of any other person (third party data) is exempt under section 40(2) if disclosure would breach one of the data protection principles. Generally this will mean considering whether it is unfair to release the information and balancing the necessary public interest in disclosure against the interests of the individual under the first principle.
...
As disclosure under the FOIA is considered disclosure to the public at large and not to the individual applicant, you will therefore need to balance the legitimate public interest in disclosure against the interests of the individual whose data it is. Although this requires consideration of the public interest in disclosure, the test is not the same as the public interest test used for qualified exemptions and there is no assumption of disclosure.

Following the Tribunal decision in Corporate Officer of the House of Commons v Information Commissioner and Leapman, Brooke and Thomas (EA/2007/0060 etc; 26 February 2008) (upheld on appeal by the High Court1), we recommend that public authorities approach condition 6 as a three-part test:

1. there must be a legitimate public interest in disclosure;

2. the disclosure must be necessary to meet that public interest; and

3. the disclosure must not cause unwarranted harm to the interests of the individual.

The exemption for personal information - version 3 (11 November 2008)

FOI and additional capacity at Heathrow

House of Commons debates
11 Nov 2008 : Column 661

Theresa Villiers (Shadow Secretary of State for Transport, Conservative)
The Government’s assumptions are hopelessly optimistic, and their credibility is further undermined by the documents obtained under the Freedom of Information Act 2000 by my hon. Friend the Member for Putney (Justine Greening)—I shall come to that later. Greenpeace has used the Act to reveal another worrying development—the Government are going to apply for a derogation from the directive. Labour’s clear promise that it would not press ahead with expansion if it violated EU air quality rules turns out to be worthless. A third runway would mean a new flight path over one of the most densely populated areas in the country, with thousands more people living with a plane overhead every 90 seconds.

Column 662
Mrs. Villiers: The freedom of information documents indicate that when the fleet mix data provided to support the air transport White Paper was fed into the Civil Aviation Authority's noise model, they failed the noise test that the Government had set. The documents then show the DFT and BAA working together closely on a subsequent "re-forecasting" of both aircraft types and numbers—a process that went on until a few weeks before the publication of the November 2007 consultation.

See also:
UK faces Heathrow legal action - New Statesman 12 Nov 2008

SIC resources for elected members

The Scottish Information Commissioner has published a series of factsheets for MSPs and councillors, setting out how rights and obligations under the Freedom of Information (Scotland) Act apply to elected members, and providing advice on best practice.

The following factsheets are available:

Factsheet A - About freedom of information in Scotland

Factsheet B - Elected Members and freedom of information

Factsheet C - Guide to making a request for information

Factsheet D - The Scottish Information Commissioner

Factsheet E - Contacts and Resources

ICO rules against VOSA over details of non-safety recalls

ICO rules against VOSA over details of non-safety recalls

ICO press release
12 November 2008

The details of 22 non-safety recalls recorded by the Vehicle & Operator Services Agency (VOSA) in 2006 must be made public following a ruling under the Freedom of Information Act. The Information Commissioner's Office has ordered VOSA to release the information as the details of non-safety recalls will not affect the commercial interests of manufacturers.
...

In her ruling, the Assistant Information Commissioner, Anne Jones, noted that manufacturers inform vehicle owners when there has been a non-safety recall as a way of preventing the issue developing into a safety related incident. As a result, the details of non-safety recalls were made available to thousands of owners and there is no evidence to suggest that vehicle owners are under a duty of confidentiality relating to this information.

The Assistant Information Commissioner also considered whether disclosing the infomation would be likely to prejudice the commercial interests of manufacturers. VOSA believed that releasing the information could undermine and damage the reputation of manufacturers and as a result could have a detrimental effect on their commercial revenue. The Assistant Information Commissioner disagreed with this argument, stating that VOSA could avoid misinterpretation of the information by providing an appropriate explanation of its context."

See
Press release
Decision notice FS50146033

CLG ordered to improve handling of FoI requests

ICO press release
7 Nov 2008

The Information Commissioner's Office (ICO) is advising the Department of Communities and Local Government (CLG) that it must improve its handling of requests made under the Freedom of Information Act in order to conform to the expected standards of good practice.

A formal practice recommendation has been issued by the ICO in response to the Department's failure to respond to internal reviews in accordance with the Commissioner's published guidance. Public authorities must respond to requests for internal reviews within 20 working days, or 40 days in exceptional circumstances.

The ICO carried out an audit of complaints concerning the Department's practices and identified a significant backlog of internal reviews. Some of the reviews requested remained outstanding over 400 working days later. A number of the delays continued after the ICO had drawn the Department's attention to ICO guidance specifically relating to this matter.

See:
ICO press release
DCLG practice recommendation
FoI Good Practice Guidance No. 5 - time limits on carrying out internal reviews

Information Commissioner & Tribunal Decisions

The Campaign for Freedom of Information is running a half-day training course on 'Information Commissioner & Tribunal Decisions' in London on 5 February 2009.

The course, which is aimed at those with a good working knowledge of the legislation, highlights key developments in the way the main exemptions, the public interest test and the legislation's procedural requirements are being interpreted.

Further details will be available from the Campaign's website shortly. Please email us if you would like to be notified when these become available.