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’.

This Act is Not for Turning: No Change to the FOI Act

 

Despite concerns that the Justice Select Committee would recommend possible restrictions to FOI, following fears from senior figures over impact on policy advice or costs, they have recommended that there be no changes to the Act.

The Committee were sceptical of some of the claims, citing work done from UCL on what is a very difficult subject (see here for discussion of this so-called ‘chilling effect’)

The committee says it did not find good evidence that the act was having a damaging effect on policy discussions, though the MPs acknowledge it was a point that was hard to prove.

The full report is to be published on the 26th July.

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.

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.

Cos I’m the Taxman: Opening Up on Tax

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David Cameron, following on from George Osbourne, has spoken of how he would be happy to publish his tax returns. This links to criticism that many of the ‘Cabinet of Millionaires’ benefit from recent tax changes, the recent ‘Cash for Access’ controversy and, not entirely unrelated, the recent row over Ken Livingstone and Boris Johnson’s incomes (you can see Boris’s returns here and Ken’s here)

Not everyone is convinced. Here Liddell-Grainger, the Conservative chairman of the All Party Group on Tax, said publication would be unfair and could trigger “jealousy.”

If you put up people’s tax returns just willy-nilly across the United Kingdom, then you get the envious factor coming in. You’ll get the jealousy. People like myself will be dealing with people whose names have been put on internet sites, Twitter and Facebook.

I don’t think that’s fair on people. They do pay tax. People don’t know what their neighbours are doing these days. Why drag them through the mire if they don’t need to be?

Such publication is common in Scandinavia (see details of Norway here and some analysis by Channel 4.) According to Channel 4, the publication of the details of all tax returns in Norway, where the law on publication was enacted, reversed, and then acted again, led to mixed results as it

Provoked an outcry from privacy campaigners, who claimed it had sparked a “frenzy of snooping”, as people rushed to find out exactly how much their neighbours and co-workers made. Newspapers and media outlets swiftly compiled their own “Top 10” lists, comparing the earning power of celebrity couples, and revealing details of top-earning footballers, actors, and business tycoons.

With details on everyone from reindeer herders to top lawyers freely available, the list seemed to symbolise the best of Nordic openness. As Jan Omdahl, from the tabloid Dagbladet, wrote at the time: “Isn’t this how a social democracy ought to work, with openness, transparency and social equality as ideals?” However a poll carried out in 2007 found most of his countrymen disagreed: just 32% thought the list should be published, while 46% were opposed.

In 2005 in Italy, in a supreme act of ‘last day in the office’ revenge, an outgoing Italian Finance Minister published tax details of the rich and famous.

Publication in Italy also caused quite a stir with allegations that it would be used by organised crime to kidnap the rich and hold them to ransom. Before you ask, Silvio Berlusconi earned £21.9m in 2005 and Giorgio Armani, who earned the most, earned £35m.

The exact point of publishing is not clear, apart from broadly being an ‘open’ thing to do. It is a great example of  the difficult, and unresolvable, balance between openness and privacy. It remains a problematic area in Norway and continues to be contentious. Perhaps this quote sums up the issue, with tax caught between the force of transparency, the voyeurism of celebrity and the irresistible pull of pure nosiness:

What some see as an honest commitment to fairness is for others, an invasion of personal privacy, and a licence for what the Norwegian tabloid Dagbladet described as “tax porno”.

Risk of a Chill?

ImageThe Tribunal has now released details of its final decision over NHS Risk Registers, a risk assessment of controversial reforms to the NHS. The concerns centred on the potential damage release would have and whether it would have a chilling effect in reducing records kept, or in other ways restrict policy-making (see here for our views).

It has a classic defence of the chilling effect from Former Cabinet Secretary Gus O’Donnell on p.15:

‘Lord O’Donnell was very concerned that if there was routine disclosure of risk registers at the stage they were requested in this case that ultimately they would lose their effectiveness as a vital management tool for government and this would have a profound and damaging effect on the public interest in sound policy-making for the following principal reasons:

  • frankness and candour which are essential to the usefulness of risk registers would be fundamentally damaged;
  • the likelihood of the risks materialising would increase;
  • it would distract policy makers from their task at a crucial point in the process of formulation and development; and
  • there was a danger that disclosure of the risks in the form that they are set out in the risk registers could harm rather than assist public debate.’

The tribunal seemed less sure

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. Also in a previous case, OGC v IC EA/2006/2068 & 80 (“OGC”), where the Information Tribunal ordered the disclosure of Gateway Reviews apparently there has been no evidence of a chilling effect since their release.

It asked the opinion of Jon Healey, the (now opposition) MP making the FOI request , who was formerly a Minister

Mr Healey was the Minister responsible for the Office of Government Commerce at the time and said that there was no evidence that a chilling effect developed as a result of the release of the reviews even after he moved to The Treasury.

It ends with two statements that sum up the difficulties with the chilling effect

Lord O’Donnell said it was very difficult to prove one way or the other whether a chilling effect would take place.

Mr Healey expressed the view, that in his experience as a Minister, that the quality of submissions on policy had tended to improve since the above disclosures.

A further difficulty is the complications of the policy process. NHS reform has proved particularly complicated and controversial, as the Tribunal points out

From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.

The problem is that many FOI requests that touch on the policy process will be for matters that are already controversial or sensitive (the war In Iraq, devolution etc)-will there ever be case that is not in some way special?

FOI and Accountability?

Does freedom of Information increase accountability? Officials think that it does not, according to a survey by the Ministry of Justice recently mentioned in the Guardian.  The key word here is think. They think it doesn’t because they don’t directly see its effects.

Officials don’t notice FOI because often it works with other accountability mechanisms, especially the  media or NGOs (see Voices for Libraries on going campaign).  FOI rarely hunts alone and its use is lost amid lots of other questions, communications and research. A long running parliamentary investigation into extraordinary rendition , for example, used FOI in the UK and the US alongside Parliamentary Questions to show that a little more was known about the mysterious flights than was admitted at the time.

Officials also don’t notice it because it is not always high profile or immediate. For every MPs’ expenses  scandal or list of visitors to Chequers there is the patient, often slow, digging up and fitting together of pieces of a jigsaw. Chris Ames has spent many years exposing bit-by-bit the inner workings of government as it prepared for the War in Iraq. His work has raised many questions about the defences made by the politicians involved.  At local level there are many groups using it to pursue all sorts of important issues that may escape officials’ radars, allotments being a good example.

FOI does make government more accountability but not everyone sees it.  Sometimes it is not the kind of accountability politicians or officials want. Often it is for unexpected things. But that doesn’t mean it isn’t happening.