Latest entry
- Martin Rosenbaum
- 19 Dec 08, 10:59 AM
We could be heading for an era of 'E-Enabled Open Government' in the world of freedom of information in the UK.
That anyway is according to a new book, Constitutional Futures Revisited, which predicts the future of constitutional change in the UK. The authors of the chapter on FOI, Mark Glover and Sarah Holsen, argue that a scenario of 'government on the web' with an emphasis on proactive disclosure of information by public authorities is the most sustainable scenario, satisfying both government and openness advocates.
But they do point out that this is set against an international trend towards 'a gradual weakening of the FOI law through administrative or legislative means'.
If public authorities do move towards much greater proactive disclosure, then one vehicle should be their publication schemes. The Information Commissioner is introducing a new model scheme from 1 January 2009, which public authorities will have to abide by (the BBC has just revamped its FOI site here).
The current pattern of proactive disclosure certainly seems to throw up all sorts of apparent anomalies. For example, if you want to know about cases where judges have imposed unduly lenient sentences, the full detail is available - name of judge, details of the initial and the increased sentence, nature of offence, etc. But suppose you wanted comparable information for sentences reduced on appeal. Some overall statistics are available (and admittedly there are many more cases), but nothing like the same level of detail - and the Courts Service has refused to provide it to the BBC.
Glover and Holsen do see alternative possible scenarios of 'Death by a Thousand Cuts' (in which FOI is starved of resources) or 'Legal Trench Warfare' (in which government resists disclosures in every way).
Of course some requesters will feel they are living through such experiences already. This week the BBC received an apology from the National Offender Management Service, now part of the Ministry of Justice, which had spent several months claiming that it was considering the public interest in releasing certain items of information - information which it then turned out it did not actually possess.
The letter of apology to my colleague Nicola Beckford stated: 'The lapse in the handling of your request was caused by a breakdown in our procedures. This resulted in officials being mistaken in judging that information existed when it did not.'
I have discussed the topic of 'NOMS and the ontological problem' previously. NOMS has a particularly bad reputation for its requests and records management, but perhaps it hasn't quite got to the point of the German government. A few days ago it was reported that the German government has lost more than 300 files that are so top secret no-one knows what was in them.
But whatever the problems that sometimes crop up with freedom of information, the latest MoJ quarterly statistics on FOI out this week indicate that the number of requests to central government bodies is remarkably stable, perhaps even slightly increasing.
This suggests that freedom of information is not so pointless that people are giving up on it, nor so fruitful that people are wanting to use it much more. And my view is that things are likely to continue in this way for the moment, whatever scenarios may appear in the future. Personally I'm going to be concentrating on some other projects at the BBC for the next three months or so. I may continue to post on this blog from time to time, but it will be more intermittent.
Recent entries
- Martin Rosenbaum
- 10 Dec 08, 10:36 AM
To what extent are government ministers personally engaged in overseeing responses to freedom of information requests?
Some light has now been shed on this question thanks to a Home Office internal report inadvertently sent to the BBC. And the evidence it contains suggests that many Home Office FOI replies may involve ministerial approval, except for those where the requester is simply told that the Home Office doesn't actually possess the information wanted.
This Home Office document was sent in error by an official to a BBC East Midlands journalist, Alistair Jackson. (I have redacted the names of some private individuals).
It itemises a batch of FOI requests to be answered by the Home Office, dividing them into those that need to be seen by a minister before the reply is sent and those that don't. As far as this group of 15 FOI questions is concerned, the only ones excluded from direct ministerial oversight are the five where the intended response is that the information is not held. Any answer involving the actual supply of information, or the refusal to provide material held, required ministerial approval.
In each case it is also noted whether the FOI request comes from the press, and (for those going to ministers), the 'level of controversy' is assessed. The most controversial one in this list concerns executive bonuses at the Criminal Records Bureau.
A Home Office spokesman told the BBC: 'They are sent for a Minister to note them before a response is sent. This is so that Ministers are aware of information that is being released into the public domain.'
This high level of ministerial involvement has implications for the amount of civil service resources devoted to FOI, as it increases the time spent on it by senior officials and those in ministerial private offices. It also risks causing delays.
An internal Home Office email accompanying the document also reveals that the Permanent Secretary has set a 90% performance target for replying within the statutory 20-day deadline.
The Home Office spokesman said: 'The Home Office is committed to responding to FOI requests within the timescales set by the Act but the complexity of our cases means that this will not always be possible. We have therefore set an internal target of 90 per cent which is achievable and challenging. Our performance has considerably improved (from 45% in 2005 to nearly 90% this year) since the Act came into force and we intend to make further progress.'
- Martin Rosenbaum
- 9 Dec 08, 09:42 AM
Many questions are being asked about the police investigation into the actions of Damien Green. But here, I suggest, is a new one.
We know the police took his mobile phone. They may well have checked who he's been calling, and who's been calling him. But if they asked his mobile network for help with this, how much are they having to pay for that assistance?
I ask this because by using the Freedom of Information Act the BBC has discovered that last year the police had to pay mobile phone companies over eight million pounds for access to data which could benefit criminal investigations.
The Telecommunications UK Fraud Forum says that the moblle companies have to take on trained experts to help the police in this way, and that needs funding.
However the Tory MP David Davis says: "Companies should have a sense of civic responsibility, and in my view, that means this sort of material should be provided free."
The full details of the replies to the BBC's FOI requests, including a breakdown of how much has paid to the telecoms companies by each police force, are on the Politics Show website.
- Martin Rosenbaum
- 26 Nov 08, 05:03 PM
Alastair Campbell says he was 'punctilious in my approach to the vetting process' when publishing his diary extracts about life in Downing Street.
But this punctiliousness about vetting doesn't seem to have involved complying with the wishes of the Cabinet Secretary Sir Gus O'Donnell. He asked Campbell not to proceed with the book at all - that's according to the evidence O'Donnell gave to the Information Tribunal. This evidence has been most usefully transcribed by Sam Coates of the Times, he says for the benefit of 'FOI watchers and civil service nerds' (thanks, Sam).
This was part of the current hearing into the disclosure of cabinet minutes relating to the Iraq war.
O'Donnell's reluctance to sanction Campbell's book is very interesting. This issue - of the extent to which ministers, officials and special advisers are or are not authorised to write memoirs - has important implications for the handling of freedom of information requests, and I am sure we will be hearing more of it in this context.
O'Donnell told the Tribunal yesterday that a number of Cabinet ministers had asked him about the case and how it might change how the Cabinet operates. I wonder if any of them were also thinking about its potential impact on the writing of their memoirs.
- Martin Rosenbaum
- 24 Nov 08, 11:10 AM
Tomorrow the Information Tribunal will start hearing a freedom of information case about cabinet minutes that could have major repercussions for the impact of FOI. It is being treated with great importance both within government and within the Information Commissioner's Office.
The case concerns the records of cabinet meetings in March 2003 which considered legal advice on the imminent invasion of Iraq.
The Information Commissioner Richard Thomas ruled earlier this year that the formal minutes of these meetings should be revealed. The Cabinet Office is now appealing against this to the Tribunal.
Richard Thomas however decided not to support the disclosure of the notebook in which the Cabinet Secretary records discussion during the meetings. The Tribunal will also consider this material, which may be more detailed.
The significance the government attaches to this hearing is clear from the fact that they have decided that the Cabinet Secretary himself Sir Gus O'Donnell will give evidence to argue that releasing these minutes could impede free and frank discussion in the future. The Information Commissioner's Office is planning to have the distinguished Whitehall historian Prof Peter Hennessy give evidence on their side.
There are numerous other cases about Cabinet minutes still under consideration by the Information Commissioner. This hearing could set an informal and influential precedent, although each FOI application has to be decided on its individual circumstances and the Commissioner is arguing that 'release of these two specific and unusual sets of Cabinet minutes would not in itself undermine the convention of Cabinet collective responsibility'.
If the Tribunal rejects the government's appeal, Ministers are most unlikely to give in at that stage. They could either use a special provision of the FOI Act to overrule the Tribunal for the first time, or they could appeal to the High Court.
- Martin Rosenbaum
- 14 Nov 08, 05:54 PM
You are a minister in the Cabinet Office. But you are also a constituency MP. Your local council has been running an anti-littering campaign, and you want to know how many litterers have been fined.
How do you find out? Naturally, you submit a freedom of information request. 
Well, it's a right available to every citizen, and that includes the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, Liam Byrne.
The answer: on average, three a week (and some of them refuse to pay).
It's not known if Gordon Brown has made any freedom of information requests.
- Martin Rosenbaum
- 12 Nov 08, 03:03 PM
When a car manufacturer seeks to tell vehicle owners that there is a defect affecting a particular model, it may use the DVLA database to send out letters to possibly thousands and thousands of relevant car owners.
If the information concerns a safety defect, then it is also publicly available on the website of the Vehicle & Operator Services Agency, an executive agency of the Department for Transport.
But what about those cases where the defect is judged not to be a safety risk? VOSA has turned down a freedom of information requests for details of such 'non-safety recalls'. Its policy is not to make the information generally public, arguing that people 'might simply form an incorrect judgment about the competence of a manufacturer to build a fault-free vehicle'.
The Information Commissoner has today disagreed, ruling that if the information about a defect is already available to potentially thousands of vehicle keepers then it cannot be considered confidential. The decision also states that the way to stop the public forming an incorrect view of manufacturers' reliability is to provide an appropriate explanation of the information.
- Martin Rosenbaum
- 7 Nov 08, 02:00 PM
The House of Lords Appointments Commission has been told to reveal some details of legal advice it received during the 'cash-for-peerages' affair which it has been trying to keep secret.
This has been announced today in a ruling by the Information Tribunal in response to an appeal I made. It partly overturns a decision from the Information Commissioner that, while forcing the HoLAC to release some material on the controversy, said this need not extend to any of the legal advice.
It is the latest stage in a lengthy process which has seen the HoLAC gradually pushed into disclosing more and more information. It now has 30 days to comply with the latest judgment or appeal.
However the Tribunal decided that it was in the public interest for other details of the legal advice to remain secret.
This is only the second time that the Tribunal has ordered that the traditional secrecy of legal advice should be breached due to freedom of information. The previous case involved Merseytravel.
The Tribunal made clear that its ruling in this case was because of the exceptional role in public life played by the HoLAC. Its remit both in proposing non-party peers itself and also in vetting party nominations for peerages gives it significant influence over the composition of Parliament and thus indirectly on its decisions.
Records which the HoLAC was previously forced to reveal to the BBC showed that Tony Blair did not personally have to sign official statements about the financial contributions to Labour made by people he was nominating for peerages. This was partly on the basis that it would be 'helpful' if he did not sign declarations which might turn out to be inaccurate.
- Martin Rosenbaum
- 7 Nov 08, 11:10 AM
A third government department has today been heavily criticised by the Information Commissioner Richard Thomas over its failings in the way it answers freedom of information requests.
The latest department under criticism is Communities and Local Government. Thomas has issued a practice recommendationdrawing attention to extreme delays in the way CLG has handled internal reviews from requesters dissatisfied with the initial response.
The Commissioner discovered four cases in which reviews had taken over 400 working days.
The two previous parts of central government whose procedures have been condemned by Thomas are the Department of Health and the National Offender Management Service, now part of the Ministry of Justice.
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