Government Response on FOI

The Government recently responded to the Justice Committee’s post-legislative scrutiny of FOI. Below are some of the highlights. You can also see what FOI man said here.

In summary it’s a mix of the good (no upfront fees), the bad (revising cost limits) and the ‘let’s wait and see’ (exemption for universities and, the Oldie but Goldie extending FOI to other organisations).

FOI does not necessarily improve trust (though the jury is still out) but does have beneficial effects on democracy (see our take here).

The Government agrees that improved trust in Government may not have been an entirely realistic objective of FOIA. Nonetheless, some limited evidence suggests that FOIA has resulted in greater public trust in Government.

Although FOIA can result in criticism of public authorities, this tends to represent a minority of cases. The Government agrees that, notwithstanding any negative coverage of public authorities generated as a result of FOIA, the increased openness, transparency and accountability of public authorities brought about due to FOIA have lead to significant enhancements of our democracy.

There should be no upfront fees for requests…..(see some work on the cost of FOI here)

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act. For commercial requesters, the Government’s Transparency Agenda has been supportive of the role that public sector information can play in driving economic growth and thus, the Government is not minded to seek to curtail the ability of those seeking information for commercial purposes.

3. But it may be possible to lower the threshold or calculate differently.

It is the Government’s view that it ought to be possible to take into account some or all of the time spent on considering and redacting when calculating whether the costs limit has been exceeded.

The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.

The Government will also look at other options to reduce the burden on public authorities in relation to the cost limit. These will include the possibility of reducing the current overall limits of £600 and £450

The government may revise how the veto is used (for some background on veto use see here)

The Government is minded to review and, as appropriate, revise the policy on the use of the veto. As part of that review, we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance on its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.

Universities may be given a special exemption for research, as exists in Scotland (see our research on FOI and Universities here)

The Government is minded to amend FOIA to introduce a dedicated exemption, subject to both a prejudice and public interest test, as recommended by the Committee. The Government shares the Committee’s view that this would constitute a proportionate response to the concerns expressed. The Government also agrees that such a measure should be reviewed at a suitable point after introduction

It may also extend FOI (if deemed necessary)? (this has been a long term commitment-but can they get around the ‘classic’ arguments against it ?)

We intend to continue consultations with over 200 more organisations, including the Local Government Group, NHS Confederation, harbour authorities and awarding bodies, about their possible inclusion in relation to functions of a public nature that they perform; and then to consult more than 2000 housing associations on the same basis. Where we conclude that such bodies are performing functions of a public nature, we intend to legislate under section 5 of FOIA to bring them within the scope of FOIA in relation to those functions, unless there are very good reasons not to, by spring 2015.

So what does this tell us? Some of the more high profile announcements may be less important than they seem. The veto, for example, has been rarely used. Few requests are made for university research and extending FOI has been an aim, but not an achievement, of at least two UK governments and one Scottish.  The interesting question is what these proposals tell us-the veto shift and proposal to charge for appeals to the Tribunal may indicate concern about FOI at higher levels of government, the University exclusion concern from senior levels of Higher Education.

The silent killer here may be the fees threshold. Reducing time spent or adding more activities to what is counted could mean many more requests hit the ceiling.

Against the Spirit? Use of FOI by Business

A recent study by a district council has found that business users make up more than 50% of requesters.  This local paper explained :

A study of a three-month period between March and May revealed Broadland received 191 requests, with each one taking an average of 56 minutes to complete – the maximum amount of time allowed without a charge is 18 hours. Broadland believes commercial sources submitted 63pc of the FOIs.

And Kim Davis-Claydon, cabinet member for operations and resources, told today’s cabinet meeting: “Nearly £15,000 is an awful lot of money in the current economic climate and there’s lots of better ways to spend it.

“The principle of the Freedom of Information Act is great, when used properly, but I really feel the commercial world is abusing the system.”

The study also found that private individuals and campaign groups both made up 8 % of all requesters and academics 2%. (see the full report here ). The use of FOI by businesses seems to be much heavier at local level than at central government level, as our report showed. Officials felt that businesses using FOI, particularly for commercial again, was against the ‘spirit’ of the Act.

Everybody Has Got Something to Hide?

There was an interesting attempt to use FOI to overturn a previous use of the government FOI veto yesterday. In 2009 the first veto was issued to prevent the release of the Iraq war cabinet meetings. Yesterday, Attorney General Dominic Greeve turned down a request that sought to try again to access the papers and overturn this decision.

One interesting feature of the veto, as outlined by the recent Justice Committee inquiry, is that it is only issued ‘per request’. This means you can (and in this case someone did) ask again. And got it got blocked again.

At the same time, a long running attempt to access accounts of telephone conversations between Blair and Murdoch in the run up to the war has been refused.

This is unlikely to be the end of the matter. This is tied up with the Chilcot inquiry into the invasion, which has reportedly been denied access to particular key documents by ‘senior mandarins’. It’s likely to cause even more fear among senior officials and politicians about the effects of FOI ‘exposing’ policy (one I don’t give much credit to). It may also support the view of Iraq war critics that there is something to hide.

No Going Back: Committee Protects FOI

The Justice Committee today published its report following its post legislative scrutiny of the Freedom of Information Act. It concluded:

 The Freedom of Information Act has been a significant enhancement of our democracy. Overall our witnesses agreed the Act was working well. The Freedom of Information Act has achieved its three principal objectives, but its secondary objective of enhancing public confidence in Government has not been achieved, and was unlikely to be achieved.

It should be emphasised that the right to access public sector information is an important constitutional right, a fact that can get lost in complaints about the operation of the freedom of information regime. We do not believe that there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits.

Some of the key findings were that

  •  The Freedom of Information Act has made government more transparent and more accountable.
  • The Act’s impact on decision-making is unclear, though the committee felt it may have had more of an impact than we felt it did.
  •  The Act’s impact on trust is also nuanced (perhaps more nuanced,in my opinion, than the MOJ memorandum claimed).
  • Publication schemes have been overtaken by technology, though it is too early to tell what impact reforms such as Open Data have had.

The Committee looked into some of the controversies around FOI.

  •  It concluded that evidence for a chilling effect is far from clear cut. The concerns of senior minister and officials may indicate there is a problem though, as the Committee pointed out, much of their evidence fitted particular circumstances, was hypothetical or was anecdotal-see Blair’s letter here. It did not recommend any changes in this area but sought to reassure that the Act itself, combined with use of the veto, should protect the required ‘safe space’ for discussion.  See here for my reasons as to why I am sceptical about this chilling.
  •  Despite a seemingly growing pressure for some form of application fee, the committee rejected this as too difficult to operate. It also outlined how difficult it was to calculate the cost of FOI.
  •  A final interesting and controversial proposal was the recommendation that universities be given a protection similar to that under the Scottish FOI that specifically protects research information. Interviewees we spoke to in our short study were divided over whether such an exemption would work or was necessary (see the UUK evidence and FOI man’s response).

The Committee made a number of recommendations: that the period of internal review have a 20 day limit, the ‘vexatious’ safeguards in the Act be better used and that requesters be told how much their question cost to process.

The most significant part of the report was what is did not do. There has been high profile criticism of FOI, from Tony Blair to David Cameron that worried the Information Commissioner. This had led to discussion of additional protections for discussion, the introduction of fees and other changes. The committee criticised Tony Blair for not appearing.

The report also quoted Francis Maude, who addressed concerns about ‘abuse’ by the press which may be driving some of these criticisms. Maude said: ‘Can [openness] lead to embarrassment? Yes. Do we have to be a bit grown up about that? Yes, we do’.

FOI and universities: A report on the experiences of FOI officers in HE institutions

The Constitution Unit’s research project on the impact of FOI on universities is nearing completion. To gain an insight into the experience of universities in dealing with their FOI responsibilities, we conducted a survey of FOI officers working the HE sector and examined FOI requests made to universities contained within a sample of disclosure logs.  The two-part report detailing the results of our analysis of can be found here.

We found the most common problem that FOI officers encountered were related to their colleagues,  with 92% of respondents citing resistance and a lack of awareness of the legislation amongst other staff as having a negative impact on their ability to carry out their responsibilities and respond to requests.  In addition, similar to the findings in our previous study on local government, we found that colleague orientated difficulties appear to be mitigated by a supportive senior management team.

The most frequently reported positive aspect cited by the officers was the increase in transparency and openness that the FOI/EIR legislation encouraged within their institution as confirmed by 73% of respondents. This included improvements in staff attitudes towards disclosure and the amount of information proactive published by the university. However, throughout the survey it was evident, and was also acknowledged by participants, that it was much easier for them to identify negative aspects rather than positives.

The disclosure logs showed journalists and the public to be the most common requesters, accounting for 59% of the 780 requests we analysed between them. The most commonly requested information was related to ‘student issues’, followed by ‘HR and staff issues’ and then ‘teaching and assessment’.

Journalists appear to be much more interested in interrogating student life than students are, accounting for 35% of the requests for information on ‘student issues’ compared to the 7% originating from current students, though several officers commented in the survey that they anticipate that this will increase following the introduction of the £9k tuition fees in the forthcoming academic year.

The disclosure log analysis also provided a useful indicator of the level of impact that controversial research can have on an institution. 13% of the requests we coded were about research, 84% of which were contained within the East Anglia disclosure log. This is demonstrative of the effect that the climate-based research and subsequent ‘climategate’ event had on the type and volume of requests received by East Anglia. Generally research focused requests were for research data itself or the research ‘policies’ of the institution.

Please see our report for the full details of our findings.

The project is funded by the Leverhulme Trust, and is due to be completed later this summer. Please see our project page for further outputs.

FOI and Extraordinary Rendition

A new website has been launched that aims to piece together data relating to rendition. As well as mapping the system of movement it also gives access to a wealth of documents.

FOI has played an important role in documenting the often complicated movement of flights of terrorists suspects (the movement of which has been linked to torture). The UK All Party Group on Extraordinary Rendition has used FOI to both the UK and US governments to find out about the dubious practice of moving people around the world to be interrogated.  It fought a long campaign to investigate the practice following up Parliamentary Questions with FOIs. There are some examples here.

Controversy over rendition has reignited following allegations that two Libyan dissidents, Fatima Bouchar and Abdelhakim Belhaj, were ‘rendered’ to Libya following Tony Blair’s 2006 visit. Belhaj claims he was tortured and a letter appears to link MI6 to his being moved, though Blair does not recall it.

In a new twist, recently a US judge has refused to release information to the All Party Group on the grounds it was a foreign government entity. He used a very interesting example:

The judge rejected the group’s argument that its members acted as individuals and not public officials. By that logic any foreign leader, including the late Kim Jong-il, could submit Freedom of Information Act requests under their individual capacity, the judge said.

See more background here and here.

UCL Insights

UCL’s research newsletter: read the full text

Just Say No: The Impact of the FOI Veto

The Coalition government used its powers under FOI to veto the release of NHS Risk Registers yesterday, an issue which has been rumbling on since an FOI request by a Labour MP. Andrew Lansley’s full statement is here. He justified his actions as being due to a fear that, if released, future records will be altered and policy made differently (the so-called chilling effect):

This is not a step I have taken lightly. I am a firm believer in greater transparency and this government and this department have done far more than our predecessors in publishing information about the performance and results of our policies. But there also needs to be safe space where officials are able to give ministers full and frank advice in developing policies and programmes.

The Freedom of Information Act always contemplated such a ‘safe space’ and I believe effective government requires it. That is why cabinet has today decided to veto the release of the department’s transition risk register. Had we not taken this decision, it is highly likely that future sensitive risk registers would turn into anodyne documents, and be worded quite differently with civil servants worrying about how they sound to the public rather than giving ministers frank policy advice.

As with the decision over Iraq, it appeared to come down to a different view of what is in the ‘public interest’

The choice to use the veto rather than appeal the decision to publish the risk register was made because the secretary of state and the cabinet views this as an exceptional case where there is a fundamental disagreement on where the public interest lies in relation to the disclosure of the risk register…The upper tier tribunal would focus on points of law arising out of the first tier tribunal decision rather than the balance of the public interest on the evidence.

The Tribunal itself had referred to the Unit’s work in refuting fears of a ‘chilling effect’:

Lord O’Donnell brought to our attention his own view of the likely chilling effect and the opinions of others. There was no actual evidence of such an effect. We note that independent research carried out by the Constitution Unit at University College London has concluded that there is little evidence of FOIA leading to a chilling effect.

What will the consequences be? In the short term the Risk Registers will remain unreleased (though some are arguing for partial release such as Lib Dem David Heath).  To the government, it will probably be better to be criticised for non-release than add fuel to the debate. This will not, of course, stop the controversy.

For FOI, the use of the veto gets easier politically the more it used. As ever this case is the ‘exception’.  However, some feel it sends out the wrong signal and each veto use erodes confidence in the system.

It also adds to growing criticism of the Act from Gus O’ Donnell, Tony Blair and Jack Straw, who called for additional protections for policy makers. This growing concern about FOI reflects the fact that politicians don’t like surprises. It may also be because those high up in an organisation only see the 1 or 2 per cent of particularly troublesome requests, sensitive cases or, worst of all, the ones involving them. So they get a very selective, and very negative, view of what is being asked.

Has David Cameron joined the concerned? He remains very pro-Open Data, even offering us his tax returns, but his recent (albeit brief) comments to the Select Committee indicated some worries about FOI being used for process rather than spending. He also appears to have voiced concern about a ‘chilling’:

Because of Freedom of Information (FoI), he explained, officials and ministers are increasingly reluctant to put on paper what they actually think…Mr Cameron says he is trying to set an example by writing what he thinks on the memos he receives.

It will be interesting to see how he feels about openness if Leveson releases his texts and emails to Rebekah Brooks.

Constitutional Reform in the Queen’s Speech

Constitutional reform featured strongly in Queen’s Speech today, setting out legislation for the coming session of Parliament. The Unit dissects… 

Lords Reform Bill

This faces massive opposition in both Houses and may fail. The reform proposals are opposed by the Lords itself, and there is so much resistance among Conservative MPs the bill may fail to get through the Commons.

The committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost.

There are numerous issues over which the plans may fall apart. Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts.

Crime and Justice Bill

Of most constitutional relevance are the references to judicial appointments. Appointments are to be made more transparent and more diverse. Diversity is a central issue in judicial appointments, as the principle that appointment should be exclusively on merit is regarded as sacrosanct by the judiciary and many in the legal profession. The Ministry of Justice (which recently held a consultation on appointments) is thought to be frustrated at the slow pace with which minority groups have entered the judiciary.

It will be worth watching how far along the continuum between strictly merit-based appointment and affirmative action appointments are taken.

Draft Communications Bill

The proposed legislation allows intelligence officers real time access to communications of the public without a warrant. However there is growing concern about the potential impact on privacy. Theresa May commented “no-one is going to be looking through ordinary people’s emails or Facebook posts”.  The ICO have confirmed they are monitoring the development of the legislation closely and will press for the appropriate limitations and safeguards and  former head of GCHQ Sir David Ormand has drawn attention to the potential chilling effect that may occur on the use of social media as a source of information.

Electoral Registration and Administration Bill

The draft bill was widely welcomed as a means of tackling electoral fraud, however two particular concerns have also been raised. Scrapping the legal duty to register will cause millions of voters to fall off the register, as will scrapping the 2014 canvass. The Electoral Commission have called for a major public awareness campaign.

Scottish Independence & the Rules of Succession

Both issues had special mention as being actively pursued in the next parliamentary session.

The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)

Being Open About Data

The Finnish Institute in London has recently completed a five-month research project on the British open data policies. The report looks at how the open data ecosystem has emerged in the UK and what lessons can be drawn from the British experiences. The year 2012 will be a big year for open data in Finland, and this report also partly aims at further facilitating the development of open knowledge in Finland.
In short, the key arguments that the research makes can be listed as follows:

  • The key to securing the benefits of open data is the quality of user engagement
  • Open data and its objectives should be addressed as a part of the freedom-of-information continuum
  • The decision to emphasise the release of expenditure data was not ideal: governments do not know best what kind of data people want to have and should aim at releasing it all
  • Leadership, trust and IT knowledge are crucial, not only for political leadership but within organisations too
  • The social and democratic impacts of open data are still unclear and in future there is a need for sector-specific research

After a series of interviews and analysis of government documents it became evident that open data is not as apolitical an initiative as many may assume it to be. There is a long history of politicised debate on transparency and public spending behind the initiative. Open data is argued to be a good example of a targeted transparency policy, where proactive release of information is hoped to help in achieving certain political goals. The decision about which information should be released first is after all a political process.

In addition, we must realise the difference between transparency and democracy-oriented goals that are usually associated with the freedom-of-information movement and the technology and innovation-oriented goals of the open-data movement. In the end of the day, the overall value of transparency is not something that should be measured primarily in financial profits.

After a survey of all English local councils and a series of interviews, it seems that public sector data providers are supportive towards the idea of data transparency itself, but very cautious towards the means of achieving it, especially the initiative of releasing the data of expenditure over £500 in local government. Many of the respondents feel that the data released lack information value and due to that the general interest towards data has been minimal.

Open data is applied in various ways with lots of small-scale success stories available, mostly in the form of mobile-phone or web applications. These services make everyday life of citizens a tiny bit easier, and when accumulated they may result in significant economic benefits. However, the open-data community has also been vocal about the potential positive impacts on democracy. These impacts are significantly harder to identify and need much more research in order to produce comprehensive and reliable results.

The report argues that the applicability of data is effectively linked to the initial objectives of open data. The value of open data is built on an uncertain variable and on how people use it – it is difficult to form a single “one size fits all” model, to measure the value of applicability. Data has value only in its use, and at this time it seems that the best way to facilitate its use is to further engage those organised civil society groups who have resources and will to use data with real public-service interests in mind.

Economic impacts can be measured relatively easily with the current methods, but the possible changes in our society due to digitisation of the core infrastructures and the abilities of citizens to manage their lives within it pose challenges for the legitimate and democratic transparency regime. In the future, it is more important to focus on the normative side of open data and on its potential impacts on democracy. There is a risk of creating a hollow mantra of open data improving the level of democracy without any evidence provided. However, the potential for great improvement in democratic accountability is there.

Truly democratic transparency requires more than just the release of open data. It needs citizens who can see that their interests are treated equally in society. If it is hoped that open data will provide the catalyst for this, then the thresholds for access, use and interpretation of data need to be as low as possible. In order to achieve this, the data producers must possess a certain level of ICT knowledge to implement the system so that it is both simple enough to use and sophisticated enough to be able to manage information flow comprehensively – knowledge which is often lacking. This should not be an excuse not to release data, however, but a wake-up call for both data providers and the open-data community alike.

The final report “Being Open About Data – analysis of the UK open data policies and applicability of data” can be read and downloaded here.

Antti Halonen is a PhD candidate at University of Helsinki and a Fellow at the Finnish Institute in London. He is the author of “Being Open About Data – Analysis of the UK open data policies and applicability of open data”.

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