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.