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.

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

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.

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.