Prince Charles and FOI, Part II

The last time Prince Charles came under the spotlight for getting too close to Parliament, the news was we could get none. This month, the Guardian found a way around that.

The Royal Family’s communications with ministers became exempt under the Freedom of Information Act during the final days of the previous government, making it difficult for anyone to find out whether Prince Charles was stepping over his constitutional boundaries when meeting with ministers.

The same does not apply to communication between ministers and charities – and Charles is president of 20 of them.

The Guardian obtained 17 emails and letters between five of the prince’s charities and ministers and officials in four government departments and found evidence of what a few months ago were just a series of (arguably well founded) suspicions.

The charity Business in the Community, which Charles has presided over for 25 years,

“urged business secretary, Vince Cable, to rethink a decision to scrap the Northwest Regional Development Agency. The Prince’s Foundation for a Built Environment urged the local government minister, Grant Shapps, ‘to incorporate greater community engagement in planning and promoted its own planning work around the country as something for him to consider in the ‘national planning framework’.”

Urging may have also meant persuading. The Department for Communities and Local Government awarded a £800,000 grant to the Prince’s Foundation “to advise local groups on new developments.”

The Department denies any connection between Charles’ lobbying and the grant, but Paul Richards, special adviser to former secretaries of state for communities and health recalls how the prince’s letters seemed to sail smoothly into ministers’ hands.

“There was a frisson of excitement when a letter came in from Charles and there was easy, open-door access for his office and charities in a way I felt other organisations would struggle to match. My sense was that the charities were given a star status and that means they get priority and I would be astonished if that was any different under the current government.”

A letter from Charles’ office to the Mayor of London, Boris Johnson, about planning issues in the city, is being withheld because disclosure could harm the prince’s “political neutrality.”

The Guardian obtained the correspondence between ministers and Prince Charles’ charities through the government – if it had attempted to obtain the information through his charities, they would have hit another obstacle: they are not covered by the Act and won’t be anytime soon.

The majority of charities are not subject to FOI (the ones that are, are listed under Schedule 1 of the Act). The scope of FOI will be extended to more organisations by the end of next year under the Protection of Freedoms Bill,  but it’s uncertain whether the Princes’ charities will be considered therein.

Hillsborough papers may not wait for 20-year rule

The 1989 Hillsborough disaster

Starting 2013, we will have to wait less for the publication of secret government documents, but the July order to release secret Cabinet conversations on the 1989 Hillsborough disaster already mentions the new policy.

Starting in January 2013, two years’ worth of classified files will be published each year. This means that by 2023, the records will be only 20 years behind the date of the event rather than 30. The files regarding the human crush at a Sheffield football stadium, in which 96 Liverpool fans died, would have already be published sooner than previously expected – 2016.

But a July 20 Information Commissioner ruling has pegged the date at August 24, 2011, instead – much to the chagrin of the Cabinet Office, which has been contesting the release of files for more than two years.

Commissioner Christopher Graham noted the reduced release time for classified archives when ordering the release. The new rules, however, have not yet gone into effect.

“Although this is not directly relevant here as … the Act continues to define an historical record as 30 or more years old… there is a diminishing case for withholding information over 20 years old,” he said.

The ICO decision concerned a freedom of information request sent by the BBC, asking for correspondence and briefings between Thatcher and her cabinet and the record of a Cabinet meeting dated April 20, 1989, five days after the disaster in Sheffield.

The documents are controversial. Families of the deceased accused Thatcher’s government of covering up the police’s involvement in the crush.

A  report showed the South Yorkshire authorities had neglected security procedures at the stadium, but family members of the deceased and the media pushed for more information. They wanted to know what Margaret Thatcher had to say.

“Twenty-two years ago, when Mrs. Thatcher came to Liverpool Cathedral, my husband asked her face-to-face if there was going to be a cover-up, and she said: ‘Mr Joynes, there will be no cover-up.’ But there has been a cover-up which has persisted ever since,” Pat Joynes, who lost her son Nicholas in the tragedy told the BBC.

The BBC request had been refused by the Cabinet Office, and the case was taken to the ICO.

The Cabinet’s main arguments are that the documents fall within the Act’s exemptions on ministerial communications (Article 35 of the FOI Act) and that releasing them would undermine the convention of collective Cabinet responsibility, whereby every cabinet member is responsible for the final policy decision, even if they disagreed with it in private discussions.

“The public authority has argued that disclosure would impact negatively upon the freedom with which Ministers believe they can engage in free and frank discussions with colleagues and upon the maintenance of collective Cabinet responsibility,” the decision stated.

The principle of collective responsibility argues that if ministers don’t have the freedom to discuss matters privately before issuing a joint statement – i.e. their opinions during the discussions are scrutinised before the fact – this will produce a “chilling effect” and damage policy-making.

Though Commissioner agreed the information fit within the parameters of the exemption – which relates to the formulation or development of government policy, Ministerial communications, and the operation of any Ministerial private office – he concluded the exemption did not withstand the test of time.

“The age of the information has a wider significance in that it is necessary to consider how likely the harmful impacts of disclosure predicted by the public authority are given the age of this information. Having considered the information and the wider context this argument would not be sustainable given the passage of time and multiple changes in government since this information was recorded,” he said.

The Cabinet Office has 28 days from the decision to lodge an appeal with the courts, or comply with the order in 35 days.

A veto is also possible, but it has only been used twice – in February 2009 over the cabinet minutes of the 2003 Iraq war, and in December 2009 over the 1997 devolution of Scotland.

Information Commissioner Christopher Graham, who had been appointed in June 2009 said he was concerned that the veto was being used too lightly.

The veto has not been used since 2009, and the Cabinet Office has not given any indication it plans to use it again. Still, the 2009 cases have some similarities to Thatcher’s Hillsborough papers: the three involve cabinet minutes and arguments against disclosure include collective Cabinet responsibility.

You can see a summary of the events and links to related documents in the Constitution Unit’s archive of Monthly Updates for 2009.

Isle of Man’s slow progress on FOI

Flag of Isle of Man

After four years in the works, Manx chief minister warned that a Freedom of Information law would be expensive to maintain.

In the last sitting of the House of Keys June 28, chief minister Tony Brown said the Code of Practice on Access to Government Information – the self-governing Crown Dependency’s current regulation “has served this island very well,” and added that ministers would have to consider whether they were willing to take on the cost.

Brown said the government would have to spend £1 million a year to administer the law, and a further £2 million to set it up.

General elections in Isle of Man will take place September 29, so the bill will be passed on to the next chief minister and council. The last sitting of Tynwald, the island’s parliament, was July 12.

Roger Tomlinson, chair of the Positive Action Group, a political pressure association that has been actively lobbying for the passage of the law in Isle of Man for five years said the FOI bill was not a priority for the Council of Ministers.

The Manx public has been let down by this administration which claims to be open and accessible. Mr Brown has effectively filibustered the Bill. In this modern world It is important that people are allowed reasonable access to information on a statutory basis. We are being denied that same right. Mr Brown and his colleagues in [the Council of Ministers] ought to be ashamed of the way this legislation has been effectively sidelined.

Plans for a law in Isle of Man began four years ago with a public consultation and the beginnings of a Draft Bill that same year. But the initial momentum didn’t persist. The Draft Bill was again brought forward for public consultation three years on, and had a first reading in the June sitting of the House of Keys.

When prodded by Cannan, who asked why the bill was “not a matter of priority,” Brown responded the bill was a “complex piece of legislation” and needed much public input.

The proposed bill contains exemptions similar to UK’s 2005 Freedom of Information Act, according to the BBC.

All this talk of cost is reminiscent of Jersey’s recent debate about its own law – where its over £5 million yearly cost seemed to mar its prospects of survival.

Jersey’s FOI law was passed May 4 – to the surprise of many – but the States Assembly decided it would not go into effect until the end of 2015.

Update: FOI and the media king

Prime Minister David Cameron pledged more transparency and better recording of all meetings held with the media.

The PM said he would consult Cabinet Secretary Sir Gus O’Donnell about amending the ministerial code “to require ministers to record all meetings with newspaper and other media proprietors, senior editors and executives – regardless of the nature of the meeting.”

According to the BBC, top civil servants and special advisers would also have to record meetings with the media, and the government will not wait for a Freedom of Information request to release it, but rather publish it quarterly.

This comes on the tails of a rapidly developing News of the World phone hacking scandal, which was brought back to the fore after allegations surfaced the newspaper had hacked into telephones belonging to crime victims and soldiers who were killed.

Cameron has outlined the details of the phone-hacking inquiry, which will be led by Lord Justice Leveson, and will involve the culture, practice and ethics of the press, their relationship with the police, as well as re-examine the present media regulations.

The scandal, which is resonating both in international media and in Parliament, has shone the spotlight on the Metropolitan Police, which has been accused of not investigating the phone-hacking case as thoroughly as it could have (a spreadsheet of the dates and meetings between police and NoW have been released on The Guardian website).

It has also questioned politicians’ associations with Rupert Murdoch, the head of News Corporation, and journalists from its newspapers.

Prime Ministers Tony Blair and Gordon Brown’s meetings with the media tycoon have been a subject of public curiosity, but responses to FOI requests have been difficult to get (see previous post).

Cameron, who has also been criticised for not being transparent about his meetings with Murdoch has pledged to open up.

If we are going to say to the police ‘you must be more transparent and cut out corruption’, if we are going to say to the media ‘you must be more transparent and cut out this malpractice’ then, yes, the relationship between politicians and the media must change and we must be more transparent too about meetings.

However, Nick Robinson, BBC political editor, said he did not believe every meeting with every journalist would be recorded, but at least people would be able to see patterns arising between meetings and important decisions.

FOI and the media king

On June 30, a handful of demonstrators gathered outside Westminster touting an eight-foot carbon fibre dummy of media tycoon Rupert Murdoch as a puppet master. From his hands dangled the marionettes of British Prime Minister David Cameron and MP Jeremy Hunt.

The protest was about Rupert Murdoch’s potential takeover of media organization BSkyB, which Hunt, in charge of culture, sport and media, was expected to approve.

On July 6 the puppet master appeared again, and photos of it spread while the media chronicled the phone-hacking scandal that led Murdoch to close News of the World, his empire’s crown jewel.

It’s an image that sticks: the shadowy, larger-than-life character pulling the strings of British policy. In a theatre, he would be hiding behind heavy velvet curtains.

It took a phone-hacking scandal to pull the drapes apart. But before that even happened, requesters under the Freedom of Information Act were already tugging at the fringes, looking to bring decision-making back into the public realm.

According to the FOI tracker whatdotheyknow.com, at least three requesters asked about Murdoch and his meetings with government ministers. One request was refused, two were partially successful – no information about the content of the meetings was disclosed – and the last one, sent only recently, is awaiting response.

Carl Bernstein, the famed journalist who, with Bob Woodward, discovered the Watergate scandal, wrote an article in Newsweek suggesting some similarities to Nixon’s wiretapping.

Almost every prime minister since the Harold Wilson era of the 1960s and ’70s has paid obeisance to Murdoch and his unmatched power. When Murdoch threw his annual London summer party for the United Kingdom’s political, journalistic, and social elite at the Orangery in Kensington Gardens on June 16, Prime Minister Cameron and his wife, Sam, were there, as were Labour leader Ed Miliband and assorted other cabinet ministers.

In fact, newspapers have documented meetings between Murdoch and former Prime Ministers Tony Blair and Gordon Brown, though not much information was obtained on their content.

Details of Blair’s contacts with Murdoch in the nine days before the start of the Iraq War were released in June 2007, four years after Liberal Democrat peer Lord Avebury sent the initial FOI request. They were released as soon as Prime Minister Gordon Brown took over.

But because the content of most of the discussions were not revealed, the media was left to attach official events to phone calls in hopes of getting an idea of what was said.

BBC’s FOI Specialist Martin Rosenbaum was skeptical and as puzzled as everyone else,

In the few days leading up to the start of the Iraq War, Tony Blair had three phone conversations with Rupert Murdoch. One of these was ‘official’ and minuted by civil servants. The other two must have been either ‘personal’ or ‘party political’ or not significant enough to be minuted, if the Cabinet Office is to be believed. What they talked about at this time of extreme international tension we do not know.

Avebury was in the process of appealing this to the Information Tribunal, when his legal team were staggered to be told by government solicitors that the Cabinet Office would give in and disclose the information.

Funnily enough, this capitulation was communicated to them on the day after Gordon Brown became prime minister. So did revealing the dates when Blair talked to Murdoch figure prominently on day 1 of his grid for his first 100 days as PM?

Brown was targeted in the News of the World phone-hacking scandal – as was everyone who is anyone, it seems – but back when all of this was still secret, he was equally reluctant to share details of his own meetings with the media mogul.

The Independent, which issued an FOI request asking for “details of any meetings” between the two was told by a Downing Street official there were no minutes to show.

 The Prime Minister has promised to respect “the public right to know” and bring in “new rights to access public information where previously it has been withheld.” Last October, he scrapped plans by Tony Blair to make Freedom of Information requests more expensive to deter more frivolous requests. Mr Brown released details of Mr Blair’s contacts with Mr Murdoch only days after becoming Prime Minister last June. But he is remaining coy about his own discussions with him.

Liberal Democrat MP Nick Clegg called Brown a hypocrite and that was that.

In May 2010, The Mirror reported that “the media baron sneaked in by a back door for a private meeting with Prime Minister” David Cameron, and heavily influenced the current government media policy.

Mr Murdoch stands accused of writing the Conservatives’ media policy. The Tories have already agreed to two of his key demands – abolishing the media regulator Ofcom and axing the BBC Trust. All four of Mr Murdoch’s UK newspapers backed Mr Cameron in the general election. When Mr Cameron was the Opposition leader, he accepted £34,000 of free private jet flights to talk with the tycoon on his yacht off Greece.

The Mirror also hit a brick wall when asking what the meetings were about.

This week, both Brown and Cameron publicly condemned the phone-hacking, after it was revealed that The Sun obtained confidential information in 2006 that Brown’s son had cystic fibrosis.

While Brown accused Murdoch of employing criminals to obtain private information about his family, private finances and ordinary people who were at “rock bottom,” Cameron called it “yet another example of an appalling invasion of privacy and the hacking of personal data.”

Cameron took a step further in opposing the BSkyB bid, striking another blow at Murdoch’s News Corp, which has already lost $7 billion, or £4.4 billion in market value in the past four days.

Bernstein doesn’t think Murdoch will ever end up in jail, even though feigning ignorance of his staff’s illegal practices has not proven to be a very convincing defence.

Could Murdoch eventually be criminally charged? He has always surrounded himself with trusted subordinates and family members, so perhaps it is unlikely. Though Murdoch has strenuously denied any knowledge at all of the hacking and bribery, it’s hard to believe that his top deputies at the paper didn’t think they had a green light from him to use such untraditional reportorial methods.

Bringing Prince Charles back

Prince Charles

Prince Charles’ private meetings with government ministers, and the fact that we cannot know what was said in them ,has become a small controversy buried under a scandal, namely the one about News of the World and its various mischiefs.

What seemed to be the beginning of an interesting debate was inevitably cut short. A small recap may be useful to bring the story back to the fore and continue with the discussion.

A week ago, the Mail on Sunday reported that prince Charles held at least 9 private meetings with senior ministers and also mentioned his notorious “black spider” letters to ministers – referring to the Prince’s lengthy notes on policy, inked in his spider-like handwriting.

This came after Alastair Campbell, who was former Prime Minister Tony Blair’s communications chief, revealed that Blair was frustrated with the Prince’s interventions on policy issues.

The monarchy no longer has any political power in the UK and Prince Charles’ constitutional role is to remain largely a symbolic head. Private meetings with ministers could be seen as pushing boundaries. But more important is that we can’t know for sure if Charles was, in fact, exceeding his position because the Royal Family’s communications with ministers became exempt under the Freedom of Information Act during the final days of the previous government.

In response, campaigners have called for a review to the changes in the law.

Maurice Frankel of the Campaign for Freedom of Information told The Independent that the revelations of regular private meetings with ministers showed that the changes in the FOI Act were not sustainable and suggested the Prince could use the exemption to conceal his political involvement.

“There is a legitimate case to made, for example, in protecting discussions between the Queen and the Prime Minister. But this type of roving lobbying by Prince Charles is a different matter. There is a question as to whether any political role he might be taking is being concealed by the use of this exemption. It should be made subject to review and, in some circumstances, the release of that information is justified.”

When the changes were first announced, Ben Chu, commented in The Independent that though the royals are no longer political actors, their symbolic position representing the U.K. must also be kept in check. Their exemption from the FOI Act also eliminates the mechanism meant to scrutinise their actions.

 “The Royal Family must be above politics and provide a focal point for respect from all Britons. But that does not undermine the argument for scrutiny and oversight of royal affairs. The monarchy needs to be seen as a dignified figurehead. Financial profligacy or improper behaviour by members of the Royal Family would bring the monarchy into disrepute and jeopardise its constitutional role. Statutory transparency (in the form of the Freedom of Information Act) would help to keep royals on the straight and narrow.”

The changes to the FOI Act came after Prince Charles was accused of intervening to halt a £3 billion redevelopment of the Chelsea Barracks by the Qatari royal family.

At the time, the Royal Family was exempt from direct requests for information under the FOI Act, but public bodies could be asked to disclose the information they held about them. The requests were subject to a public interest test.

The changes that took place in January rendered the Royal Family an absolute exemption from the release of details about his contacts with ministers and civil servants.

Here is what the Constitution Unit wrote about them in March.

“The absolute exception covers all communications of the monarch, her heir, and the second in line to the throne, while the correspondence of the rest of the Royal Household with public bodies remains subject to a qualified exemption. So… requests about finances would result in exactly the same outcome now as before the amendments. Similarly, if people are requesting records of Prince Andrew’s activities as the UK’s trade envoy, then the decision to release, at least under section 37, will be taken in light of a qualified exemption. The real change will be felt with respect to the third and more controversial example: letters allegedly sent between ministers and Prince Charles lobbying on political matters are now inaccessible to FOI requesters.“

With all this talk about Freedom of Information, Martin Rosenbaum, the BBC’s FOI specialist added another element to the mix: the FOI law may be only part of the issue here.

Because Prince Charles’ policy concerns has more to do with the environment than with any other policy issue, much of the information we want to know about is not covered by the FOI law at all, but rather the Environmental Information Regulations (EIR).

The EIR do not have any specific provisions protecting the Royal Family, Rosenbaum said, so requesters can fire away. But there are exemptions.

“The letters written by Charles himself could be withheld on the basis that it would harm his interests, as someone not obliged to supply information to the public authority. And the Information Commissioner has ruled that replies to him from the government can be kept secret, because by revealing his views they would thus reveal his personal information in breach of the Data Protection Act.”

In all matters not related to the environment, however, the FOI exemption for the royals should be looked at. After all, the Prince Charles may be only a symbolic figurehead and a private person in his own right – but not every private individual enjoys such access to Members of Parliament. Isn’t it in the public’s interest to know what is being said to them?

FOI wakes up the dead

Zombies in Leicester

It started with a simple question to a local council. A few paragraphs to the bureaucrats. It was a strange question, surely, but what happened next came straight out of a sci-fi movie.

Hundreds of zombies came to the streets. Their faces wan with foundation powder, dark circles hinging under their eyes, induced by eye-shadow. Red stage make-up dripping like blood from their cheek bones.

They were not there to eat people’s brains like regular zombies do. These living-dead had arrived to evaluate Leicester city’s contingency plans.

What brought them out on the streets was a Freedom of Information request sent to Leicester City Council by “a concerned citizen,” also known as Robert Ainsley, and identified by The Leicester Mercury  as 26-year-old politics graduate James Dixon.

“Can you please let us know what provisions you have in place in the event of a zombie invasion?” he wrote. “Having watched several films it is clear that preparation for such an event is poor and one that councils throughout the kingdom must prepare for.”

It was a joke, not the delusions of a gadfly, according to The Leicester Mercury, and the media ruckus that ensued was enough to wake people from their eternal rest.

But it really fair for the civil servants – legally binded to respond to non-vexatious FOI requests – who are now scratching their brains, trying to respond to this strange question? They probably weren’t prepared for the event of an FOI request on a zombie attack.

And how does it affect the FOI Act itself?

One one hand, it could serve to get more people acquainted with its existence who may start asking responsible questions.

In 2008, 86% of the UK population knew they had the legal right to access government information, according to the Information Commissioner’s Office. This may be the reason why the number of FOI requests to local authorities rose from 60,000 to 80,000 between 2005 and 2007, according to the Constitution Unit’s research.

On the other hand, the zombie request may also start a trend in which citizens ask their council questions like whether they are planning to build an airport for flying saucers or a school for alien children, just because this one was so much fun.

According to FOI request tracker WhatDoTheyKnow.com, nine new requests have been submitted on the topic of zombies.

But even that isn’t really a bad thing, as it may help oil the FOI machine. The Constitution Unit found that if the Act is not being used, the act can enter into stagnation: a minority of requests are answered and there are more delays.

The Leicester council hasn’t responded to Ainsley’s request yet, but Leicester’s head of information governance, Lynn Wyeth spoke to local radio and the BBC about the question.

She could have complained about the amount of work created by someone who just wanted to have a good laugh. Instead, she responded gracefully.

“To you it might seem frivolous and a waste of time… but to different people it actually means something,”she said. “Everybody has their own interests and their own reasons for asking these questions.”

Bristol City Council took it one step further and responded to a copycat FOI request with an actual, “top secret” zombie contingency plan. You can look at it here if you don’t believe me.

But maybe we are having too much fun. The FOI Man offers a more sobering perspective from the point of view of an official dealing with the Act on a regular basis.

Though he found it amusing at first, he soon came to the conclusion that it is a misguided use of FOI, and may make public officials who are already skeptical of the act, even more so.

My fear is that a combination of zombie requests, public sector spending cuts and lack of support for FOI at all levels in public authorities could seriously damage our right to access information in this country. As FOI Officers, we have a duty to promote FOI to our colleagues. But we can’t just keep repeating the same old answers in the hope that they will have a ‘road to Damascus’ conversion. The only way we can progress in instilling FOI as a culture in our organisations and our country is to listen to colleagues’ concerns.

FOI requests also cost a lot of money too £30.6 million pounds in total for the UK, according to the Constitution Unit’s calculations.

“We should acknowledge that some requests are a waste of resources (even if we can’t actually refuse them),” he wrote.

Having said all that, this may just be a one-off situation in which a “concerned citizen” decides to bring the FOI act to the fore for some good fun.

The media will soon forget about it (they may already have), but for some FOI enthusiasts it will remain an event in which a simple request for government documents turned into a lighthearted invasion of the living dead.