Swings and roundabouts: FOI and the applicant blind approach

FOI requests are applicant blind: It should make no difference who is asking, everyone should be able to get access to the same information. This is how the FOIA sets out the right of access, but is this true in practice? To what use is the identity of a requester being put, and does it undermine the proper functioning of FOI?

Among the areas of greatest concern, are the worries of some journalists that their requests are held up, presumably, to make the information old news by the time it is made available. In a blog post on the topic, anonymous blogger and FOI handler, FOIman, suggested that while this isn’t a big problem, he couldn’t say it didn’t happen. There is certainly evidence from Canada that journalists suffered longer delays, and greater interest in their requests from politicians: it may well be the case that this happens in some departments here. There is not necessarily anything wrong with politicians being aware of the information that their department is releasing, though. A heads up that information is being released might well just help government to be in possession of the relevant facts when contacted by the press at a later date.

More controversially, there are instances in which there is intentional political interference with the response to a request. Though these instances seem to be few and far between, they do occur. The actions of the leader of Kirklees Council altering responses that had been drafted may be such an example. Though Council Leader Mehboob Khan denies any wrongdoing, he admitted to amended one per cent of FOI requests, including insisting that prepared responses be rewritten and information is withheld [1].

But not all instances in which the identity of a requester is used will be malign. With vexatious requests, there is clearly a proper use of the requester’s identity. If a requester is bombarding a public authority with repeat requests, or using FOI to harass someone, then there can be no problem with refusing to help them with their enquiries. Misuse of this provision might be harmful, but with less than 100 requests being refused as vexatious in 2009, out of more than 30,000 requests in that year, this use of identity to refuse access does not seem to have much of an impact.

There are situations where it might even be advantageous for a requester’s identity to be known. At a recent event on FOI and higher education, a number of researchers spoke of building relationships with request handlers to help get access to the information they are seeking. Speaking to those who handle information in a less formal way (perhaps by just picking up the phone) helps to clarify what the requester wants, and knowing how they want to use the information can help with getting the information in the manner it is desired. Some MPs too have reported that their responses are dealt with quicker if they identify themselves. Being identifiable need not leave a requester prone to some Orwellian machination.

So, with FOI, does it matter who you are? Maybe, but the consequences of being known need not be wholly negative. Very few people are refused information on the grounds that their request is vexatious, and very few instances of political intervention have come to light. On the other hand, not being just a name at the bottom of an email might help you to get what you want.

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[1] The Huddersfield Examiner interviewed Mr Khan about the story: http://www.examiner.co.uk/news/local-west-yorkshire-news/2011/03/28/how-kirklees-council-leader-mehboob-khan-meddles-in-your-information-requests-a-report-everyone-in-kirklees-should-read-86081-28413970/

Is the alternative vote worth voting for?

This was the subject of a debate at UCL last night, where leading figures from the yes and no camps met alongside electoral experts and UCL students to argue the point.

For the yes side, Billy Bragg and Katie Ghose argued that the referendum provided an opportunity to offer greater choice to voters, to combat the sense of disenfranchisement among those who do not identify with the parties likely to win under first past the post, and to challenge MPs to target the wider population rather than swing voters.

For the no side, Jane Kennedy and Charlotte Vere called AV a timid reform, a shield for Liberal Democrat unpopularity, and a change that far from combating safe seats would just make different seats safe.

A third camp too emerged, of those who didn’t care for AV or FPTP, but wanted change of a different kind. For them different questions were important: if AV passes, will it be the start or the end of reform? Is AV a compromise worth making?

A quick poll at the end of the night indicated that the vast majority of those attending were in favour of the change to AV, but with a little under a month to go, it’s still all to play for. Last night showed how much we need this debate so, what do you think? Whether you think AV is progressive or regressive, a step towards or away from greater democracy, a political fix or a non-event, let us know…

Further information:

University funding and access to information: does FOI have a corrosive effect on trust?

The funding of universities is all over the press at the minute, but while the fee rise may be taking the headlines, a furore over donations from dubious sources is almost certainly brewing.

Howard Davies, the former director of the LSE, resigned amid the controversy over Libyan donations to the School, and stories are starting to emerge as part of a campaign to uncover links between British universities and dictatorial regimes. Conservative MP, Robert Halfon, has made requests to 100 top-rated universities aimed at making their financing public knowledge. Durham University was among the first to have their laundry aired last month, when it was revealed that the University had received £700,000 in research grants from Middle-East sources, including £11,000 from the Iranian government[1].

The morality involved in this funding is a minefield in itself, but the implications for FOI are also of interest. On a superficial level, university funding is likely to be the next big story to emerge through the use of FOI. As Mr Halfon gets more responses to his requests it seems likely that funding for higher education will come from a variety of morally suspect sources, and so as a use of FOI to scrutinise public bodies, the subject is of interest. But there is a problem that is developing alongside such stories.

While scrutiny may be flourishing with FOI, as another scandal develops through its use, university funding points to an emerging difficulty: the potentially corrosive impact of transparency on trust. One of the key aims that pro-FOI campaigners argued for while the Act was being drafted was that decreasing secrecy would lead to greater trust in public bodies, but the reality might be the exact opposite.

It is the nature of the press that the stories that will make the biggest impact, and generate the biggest sales, are scandalous: If the results of requests for details of MPs expense claims had proved parliamentarians to be wholly honest then there would have been no story. Paradoxically, while greater levels of scrutiny and a higher chance of journalists uncovering misdeeds may increase trustworthiness, it may do so at the expense of trust[2].

So what can be done? The answer is probably not very much. The more successfully FOI uncovers the wrongdoings of public employees, and the greater the number of their misdeeds that are identified, the less likely people are to trust them. It seems that the more effective a system of FOI is, the more likely it is to damage public trust. Perhaps in the long run, when all the skeletons are uncovered, trust will be improved, but as the investigation into universities has demonstrated, there are still plenty more to find.

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[1] The Institute for Middle Eastern and Islamic studies at Durham University is a highly regarded centre for study of the middle east (http://www.dur.ac.uk/sgia/imeis/).

[2] It’s worth noting that press is only one indicator of public trust, and it may be very difficult to measure trust more widely, but nevertheless the media important in this regard. The Ministry of Justice and the ICO have published more detailed research into trust and FOI:

http://www.justice.gov.uk/publications/information-rights-tracker-surveys.htm

http://www.ico.gov.uk/~/media/documents/library/Freedom_of_Information/Research_and_reports/FOI_REPORT_FINAL_12_MAY.ashx

A right royal cover-up?

Royal communications are now absolutely exempt from the FOIA. Certainly one of the more controversial aspects of recent reforms to the Act, and one that begs a number of questions: what is covered by this exemption, why should the royals be exempt at all, and what will the public be missing out on in the future?

In the past, FOI brought a number of Royal controversies to light: from the Buckingham Palace request for money targeted at energy saving grants for those on low incomes, the communications between ministers and the Royal household about the spending of the £38.2 million allocated to staff palaces, to the highly controversial involvement of Prince Charles in lobbying ministers.

Of these, the former two will remain accessible under the reforms. 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, the 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. Is this a change for the better?

The essence of constitutional monarchy is that the Queen and other members of the Royal Family remain politically neutral”, said Professor Vernon Bogdanor when the changes were announced in January. The Queen must work with governments of all political hues, which could be difficult if her political leanings were known, something that applies equally to her heirs. It is also important that the heir to the throne educates himself in the affairs of state to prepare for his future role as King. But is it right that the new exemption covers as much as it does?

The Lord Chancellor defended the absolute exemption on the grounds that the amendment “is necessary to protect the long-standing conventions surrounding the monarchy and its records”. However, the ICO decision of earlier this month, on whether it was in the public interest for Prince Charles’ communications with ministers, which turned on the unamended legislation, took full account of these conventions under the qualified exemption. Is it right, as is now the case, that the public interest can never override these conventions? If a senior Royal is exercising undue influence on government, does this not go beyond the purpose of the conventions?

So what will we miss out on in the future? The short answer is, probably not very much, but what is problematic is that what is now excluded falls at the more politically controversial end of the spectrum. Is it right that no matter what high profile Royals are saying to politicians, the public will not find out until that person is dead? If a senior Royal were exercising undue influence on government, is this something that ought to be confidential?

Climategate: just the tip of the iceberg?

“Climategate” hit the news again last month with the publication of the Select Committee Report, but beneath the climate-sceptics and the angry headlines lurks another problem: what does FOI mean for universities?

Richard Thomas, the former Information Commissioner, summed up the position under the FOIA when he spoke at the latest inquiry into the scandal. He said: “[t]he fact that FOIA requests relate to complex scientific data does not detract from the proposition [that FOI improves accountability and good governance] or excuse non-compliance”. FOI legislation includes exceptions for information that is intended for future publication, as well as where commercial interests may be harmed, but it is not yet clear what these exceptions cover in academia. Lack of clarity is a problem in itself, but it is not alone.

First, there are the administrative burdens and costs in the wake of sizable cuts in the education sector. Websites such as academicfoi.com are becoming involved in investigating universities and their employment practices as well as those interested in the work of academic staff. With academic institutions becoming the target of FOI in themselves as well as for their research, their workload could well increase. This scrutiny may increase standards, but it has other effects.

On average, universities have less than the equivalent of one full time member of staff dealing with ‘FOI issues’, with universities struggling to respond within time limits[1].

If universities are to maintain records to the standard required to fulfil requests, then this will require either more staff, or for current staff to shift their attention. The choice between increased costs or decreased services will not be easy in the current climate.

Second, while research councils are encouraging academics to share data, the idea is less than welcome among many researchers. Professor Mike Baillie, in particular, has been scathing about the idea that his data is up for grabs for the ‘price of a stamp’: “[w]e are the ones who trudged miles over bogs and fields carrying chain saws. We prepared the samples and- using quite a lot of expertise and judgment- we measured the ring patterns”. Is it right that FOI can make this hard work of researchers public property? What is the effect on copyright and how will it apply to private funding?

On the other hand, while life may be harder for academics facing FOI requests, it also creates new opportunities. Researchers at the University of Manchester have used FOI to find that Muslim terrorists are no more likely to come from areas with large Muslim populations than anywhere else, while the New Scientist scrutinised the preparedness of the MOD for nuclear accidents.

Right now there are more questions than answers, but what is clear is that clarity is needed. The higher education sphere is both a user of and subject to FOI, and it needs to work out what this means and adapt. It is with this in mind that the Research Information Network, in association with several other organisations, is running a series of workshops next month to examine the implications of FOI for the higher education research community. The Constitution Unit will be contributing to these events, and the hope is that this is the first step in working out what FOI means for the academic sphere.

[1] Joint Information Systems Committee infoNet, GuildHE and Universities UK. 2009. Information Legislation and Management Survey 2009 (http://www.jiscinfonet.ac.uk/foi-survey/2009/im-survey.pdf)

Parliamentary privilege: clear as mud but not quite so dirty

Privilege: a word that calls to mind the protection the rich or the powerful from the rules of ordinary people. Viewing this phrase in light of the Supreme Court decision of last year on the trial of three MPs and a Lord for offences relating to expenses does little to dispel this image. Parliamentary privilege has had more attention of late than for many years, as the FAQs that littered newspaper websites show [1].

So what is parliamentary privilege?  In short, privilege is made up of two rights of parliament. First, that “the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament” arises from article 9 of  Bill of Rights 1689. Second, Parliament has the exclusive jurisdiction over its own affairs as developed through case law.

Why is this so important? If parliamentarians can’t be sued for defamation for what they say in parliamentary business, they can speak freely without fear of legal costs, and if Parliament takes responsibility for disciplining those who break its rules it cannot be improperly influenced by those outside.

A parliamentary question would clearly be part of parliamentary proceedings, as Parliament needs information. Giving evidence to a select committee is also covered, as keeping the identities of those giving evidence helps ensure that evidence is complete and honest. Recent high profile examples of the use of privilege are more sensational: the search of Damian Green’s office as part of a police inquiry into allegations that he conspired to commit misconduct in a public office, the prosecution of Harry Greenway MP for alleged bribery offences, and most recently the Supreme Court case that decided that expenses claims were not similarly protected. Whatever the rights or wrongs of the actions of those involved, privilege does not keep good company in the media.

Why, then, is there so little understanding of parliamentary privilege? First, the development of the concept through the common law means that information about privilege is just not that accessible to the general public. Even though the expenses scandal captured the public attention, few will have read the Supreme Court’s 48-page analysis. Second, where the mystique of the courts meets that of Parliament the situation is unlikely to be improved. Finally, when MPs are seen trying to use privilege to cover their misdeeds, the public are unlikely to feel much sympathy.  

So where next? While reform fell by the wayside in 1999, perhaps an Act codifying and modifying parliamentary privilege could combat misunderstandings, and provide an opportunity to address some of the stranger historical quirks. Such a proposal appeared in last year’s Queen’s speech, but meanwhile, in the wake of the expenses scandal, the name “parliamentary privilege” seems to fulfil every prejudice people have of parliamentarians and can do nothing to help their public image.

[1] The Independent, Guardian, Telegraph and BBC all published guides or FAQs on the topic