mySociety

Today we’ve re-added Network Rail to the list of public bodies one can make requests for information from via mySociety’s Freedom of Information website WhatDoTheyKnow.

Network Rail owns, runs, maintains and develops most of the UK’s rail infrastructure including tracks, signalling, bridges, tunnels, level crossings, viaducts. It owns almost all of the UK’s stations and manages the biggest and busiest.

Network Rail is not currently subject to the Freedom of Information Act or the Environmental Information Regulations however we use our site for activism by listing many bodies which are not formally subject to FOI or EIR. Some of these voluntarily comply with FOI, others don’t but we add them because we think they ought be subject to the Act on grounds such as:

• Making public appointments.
• Being substantially publicly funded (this is not a sole reason we would consider an organisation a public body)
• Controlling public assets.
• Having a public regulatory function, including controlling access to trades and professions.
• Controlling significant national infrastructure.

The degree to which Network Rail is a public body is a subject of controversy however a number of the criteria listed above clearly apply to the company.

The Information Commissioner once ruled that Network Rail is a public authority for the purposes of the Environmental Information Regulations however this was overturned by a Information Tribunal Decision in 2007 .

The tribunal decision noted:

[Network Rail] is a major landowner whose estate … in the words of its website, includes “many sites of great environmental, geological, historical and architectural importance” as well as much contaminated land.

The tribunal expressed a view the position of Network Rail in relation to access to information legislation is “clearly unsatisfactory”.

Network Rail

We originally added Network Rail to our site back in 2008 before we had developed the above policies and we closed it to new requests after the first request sent didn’t get a response.

Recently there have been positive indications in relation to access to information held by Network Rail. On the 2nd of February 2012, transport minister Norman Baker speaking in Parliament said:

Network Rail has promised that it is in the process of developing a voluntary information rights code, which will mirror many of the provisions in the Freedom of Information Act. We welcome that initiative and believe that, if properly implemented, it will provide an alternative to legislation. We expect the company to introduce the code alongside a broader package of Government reforms later this year.

This followed an earlier statement, from the 18th of January 2012, by Earl Attlee, answering a written question on behalf of the government:

Network Rail is a private sector company. The Government have no current plans to extend the Freedom of Information Act to the company. However, we welcome the fact that Network Rail is taking steps to enhance its own transparency and is developing a voluntary publication scheme with which it will comply.

The approved model publication scheme used by public bodies which have to have one states:

Information held by a public authority that is not published under this scheme can be requested in writing…

Hopefully our re-listing of Network Rail will help push Network Rail’s openness and transparency agenda along and enable our users to benefit from the new era of openness being promised within the company. Making correspondence related to requests for information publicly available via our site will enable everyone to see how it goes.

On the 21st of February 2012 Alex Skene, representing mySociety’s Freedom of Information website WhatDoTheyKnow, appeared in front of the UK Parliament’s Justice Select Committee. The MPs on the committee were holding an evidence session as part of their post-legislative scrutiny of the Freedom of Information Act.

Video of the session can be viewed online via ParliamentLive.TV and the BBC’s Democracy Live. A transcript of the session will become available via TheyWorkForYou, typically these take a week or two to be produced.

Prior to the session WhatDoTheyKnow had submitted written evidence to the review making three main points:

• The scope of the act should be extended to cover a wider range of public bodies.
• Time limits should be introduced for public interest tests and internal reviews.
• There is a need for more proactive publication of information, and a culture of openness and transparency needs to continue to be nurtured and extended within the UK’s public sector

The committee appeared genuinely interested in finding out how FOI has performed to-date and how it can be improved.

Supercharging FOI

Alex told the committee that FOI enables evidence based policy making and empowers citizens; he said the WhatDoTheyKnow.com website supercharges the provisions of the FOI Act making it easier for people to take advantage of the right to access information which it gives them.

Ghosts

Elfyn Llwyd MP raised the question of vexatious and frivolous requests through the medium of ghosts. Asked if requests about ghosts could ever be justified Alex told MPs that it was hard to draw the line between acceptable and unacceptable requests. He noted that one council had spent public money on an exorcism, so in that case there would be information held and an FOI request justified. He questioned if requests on ghosts were to be deemed unacceptable, what other areas might be excluded. UFOs? The MoD for a long period did have an office collating UFO reports, again there was public spending, and recorded information held, in this area. Homeopathy was also highlighted, that’s about as real as ghosts or UFOs, but again FOI requests about it must surely be permitted as significant amounts of taxpayers money are spent on it.

Maurice Frankel, the director of the Campaign for Freedom of Information, who was giving evidence alongside WhatDoTheyKnow took a stronger line. He described those who made FOI requests about ghosts as “idiots”; but also accepted it was hard, and undesirable, to try and outlaw requests on certain subjects. He added that such requests did not generally cost large amounts of money to deal with.

Time Limits

MPs on the committee appeared sympathetic to calls from the representatives of WhatDoTheyKnow and the Campaign for Freedom of Information to introduce stricter time limits. The need for time limits was brought into focus during the discussion of the time limits for prosecutions under S.77 of the Act (Offence of altering etc. records with intent to prevent disclosure), very few requests have gone through a response, and internal review, and the Information Commissioner within the time limit for launching a prosecution. An MP suggested making offences under S.77 triable in either a magistrates or a crown court so as to extend the time period while retaining consistency with the rest of the justice system.

Fees

When asked to comment on the idea of introducing fees for all FOI requests Alex said such proposals would be “devastating” and would deter many from making requests. Alex noted that the public had paid for the information in question already, via general taxation, and ought be able to access it.

Exempting Universities

When asked to comment on lobbying from universities to be exempted from FOI, Alex robustly defended their inclusion in the act, pointing to their role in controlling access to professions and awarding degrees. Maurice Frankel and Alex noted the universities’ argument that they were being funded by a decreasing fraction of public money wasn’t really relevant, as that is not the basis on which bodies are deemed to be covered by the Act.

Extending Coverage of FOI

The reach of FOI into commercial organisations carrying out work on behalf of public bodies was briefly discussed however notably there was little further discussion of extending the coverage of FOI, perhaps suggesting this may be a dedicated subject for future evidence session. This session was been described as the committee’s first, suggesting there will be more. At least one of these will presumably hear from the Information Commissioner.

The written evidence we submitted can be read on page 81 of the compendium of submitted evidence (PDF).

MPs are about to review the first five years of the operation of the Freedom of Information Act 2000. We’d like to encourage users of mySociety’s Freedom of Information website WhatDoTheyKnow.com to share their views and experiences with the MPs who are to carry out the review.

The review is being conducted by the House of Commons’ Justice Select Committee.

The committee is currently inviting people to make submissions to it. The deadline for submissions is Friday 3 February 2012.

A memorandum from the Ministry of Justice has been prepared to brief the committee, that document notes, in paragraph 67:

Very little research has been published detailing the views of requesters of information.

Particularly in-light of this we thought it would be worthwhile alerting our users to this review; if we could encourage our users to make submissions to the committee that might help ensure they receive balanced evidence: from outside, as well as within, the public sector.

While the committee is interested in any comments on the act’s operation, specific questions the committee has asked for comment on are:

• Does the Freedom of Information Act work effectively?
• What are the strengths and weaknesses of the Freedom of Information Act?
• Is the Freedom of Information Act operating in the way that it was intended to?

Responses can be emailed to: justicecommemo@parliament.uk

Details of how responses should be formatted and technical details relating to submission are available on the webpage announcing the call for submissions.

Member of the National Secular Society Robert Christian used mySociety’s Freedom of Information site, WhatDoTheyKnow to ask all 227 English NHS “provider” Trusts about how much they spend on chaplaincy.

On the 28th of February 2011 the results of his research were published in an article on the National Secular Society website (full report [PDF]). He found that £29m of NHS funds were used to pay chaplains in 2009/10 and also observed a wide variation in the amount, as a fraction of total spend, that specific trusts were spending on chaplaincy.

The publication of the research prompted a number of articles in the UK media. eg. (Daily Mail, The Independent, The Mirror).

Mr Christian has commented:

“To have identified the right FOI contact for every provider NHS Trust in England would have been daunting if not impossible. I doubt that my study would ever have got off the ground without WDTK. I particularly valued the way that the site tracks which Trust has and has not yet responded. I liked the capability to thank each FOI lead after they had responded.”

The fact that making requests via WhatDoTheyKnow allowed Mr Christian to cite the source of his raw data was important to him. He added:

“The transparency of the raw data is, I think, one of the main strengths of the WDTK website for three reasons. First, I was able to hyperlink every piece of data back to its source – and that meant that it was easy for colleagues from the NSS to check the accuracy of the data (with so many Trusts a transcription error was always a possibility). Second, it ensured that if anyone had wanted to challenge the accuracy of the data they could be directed to see that the study was simply quoting the Trusts’ own information. Third, it means that the data is there for future reference to see if there are any changes over the coming years.”

mySociety and WhatDoTheyKnow are non-partisan and don’t get involved in campaigning except in specific areas relating to openness and transparency. We take no view on issues such as how much, if anything, the NHS ought be paying for chaplaincy. However we welcome campaign groups making use of our services.

Bulk Requests

WhatDoTheyKnow currently has around 2-4 “bulk requests” per month made via its site. At the moment we don’t provide any mechanism to make bulk requests automatically. We are considering adding such a system, for requests which have been sanity checked by the WhatDoTheyKnow team. The provision of such a system would probably be associated with a mechanism for preventing other “bulk requests” from being made without the site administrators’ explicit approval.

Making the requests is only a small part of the work involved in a study such as that carried out by Mr Christian. Chasing public bodies for responses, as well as collating and analysing the information released is likely to be much more time consuming than submitting the requests themselves. This is something Mr Christian agrees with, stating:

“If enquirers are not prepared to individually contact each organisation to ask the question, I would doubt their commitment to retrieve and analyse the information (as that is actually a much bigger task)”.

Clearly any facility for enabling requests to be made in bulk will have to incorporate safeguards to ensure responsible use.

Whereas Mr Christian has been happy to conduct his research in public, and still been able to generate media coverage following publication, we are aware that many campaign groups, and others such as journalists, like to make Freedom of Information requests in private.

Mr Christian has commented on the issue of “scoops” and the effect of conducting his research in public:

“The question of ‘scoops’ is an issue for journalists and in fact this problem did happen in this case. Someone appears to have trawled the WDTK know site and noticed what I was doing. A short piece was run by the Daily Express before we completed and published the study. So clearly this might be an issue. But the risk of a spoiler being run will tend to be low when the number of organisations being contacted is large. This is because the amount of work needed to collate and analyse the data is enormous and so casual trawling will show only that a question is being asked – not what the conclusions are.”

In order to get as great a fraction of the total number of FOI responses available on WhatDoTheyKnow we have also been considering an option for making requests in private, for a fee. The idea would be that once the findings were published then the FOI response could be opened up to the public providing access to the source material backing up the story.

Any views on our ideas for the future and on the way WhatDoTheyKnow has been used for this, and similar, research would be welcome in the comments below.

The Government is currently proposing to reform the UK’s defamation laws. The WhatDoTheyKnow.com team has responded to the consultation on a Draft Defamation Bill currently being run by the Ministry of Justice.

The bill proposes extending and clarifying the list of types of material subject to “privilege” ie. which can be published without fear of being sued for defamation. “Matter published by or on the authority of a government or legislature anywhere in the world” is already covered but we have been advised that might not extend to all Freedom of Information responses; if it does or not is something which is yet to be tested in court.

We are asking for the law to be clarified and for “privilege” to be extended to a fair and accurate report or summary of, copy of or extract from material released by public bodies. The proposed new provision would enable the republication of Freedom of Information responses from public bodies without fear of libel action. Such a provision would clearly be of value to services such as WhatDoTheyKnow.com. It would also allow campaigners, journalists and others working with such material more freedom from legal threats and uncertainty; as such this addition would appear to be in-line with the coalition’s stated aims of their amendments to libel law.

We would rather see Parliament explicitly clarify the law rather than see a journalist, campaigner or website operator be subjected to an expensive and time consuming legal action.

Additional suggestions

We have also suggested:

• That the principle that any governmental body should be open to uninhibited public criticism, and therefore should not be able to use or threaten use defamation law to quash critics ought be extended to apply to all public bodies and those, such as contractors, acting on behalf of public bodies.
• That merely pointing to defamatory material, through the provision of a weblink, ought not in itsself be actionable where there is no express endorsement of the defamatory material along with the link.

The full consultation response can be read online at FOIWiki

Earlier today the Department for Education, which is headed by Education Secretary Michael Gove, wrote to WhatDoTheyKnow to let us know that the main email address they use to receive FOI requests is to be phased out. They would prefer the public to make their FOI requests via the contact form on their own website instead or even by post. We believe that this approach is contrary to the spirit of the law and principles of Freedom of Information.

The message we received stated:

We changed the way that people contact our department last year, encouraging customers to go to our website to find what they are looking for and submit an enquiry via our contact us page (www.education.gov.uk/contactus) if they could not locate information.

The [main FOI] mailbox that your system points to ([email]) will eventually be phased out and I would be grateful if you could advise customers using your website to refer to www.education.gov.uk/contactus if they need to contact the Department.

We certainly agree that people should check whether the information they are looking for is already available before submitting a FOI request — and indeed we already prompt all users of WhatDoTheyKnow to do so, not just for the Department of Education, but for every public authority we list.

When requests are submitted through WhatDoTheyKnow responses are automatically published ensuring a lot more information ends up online and publicly accessible than when submitted privately. If the Department for Education wants to reduce the amount of correspondence it gets in relation to already published material it should be encouraging people to make their FOI requests via WhatDoTheyKnow. Already, based on Ministry of Justice statistics, we calculate around 10% of all Freedom of Information requests to the Department of Education are made via our service.

We have asked the department to let us know which alternative email address they would prefer us to forward FOI requests to, and we await their reply. We are happy to use whichever email address is easiest for a public body.

We have also made clear that we will continue to offer our users the ability to make requests to the Department of Education via our site and will not be removing that facility and directing people to the department’s contact form as we were asked. Forms often include unnecessary mandatory fields that the FOI legislation does not require (in the DfE’s case they ask what kind of a requester you are, making you specifically type in “prefer not to say” into an “Other” box if you want to opt out).

The law rejects the idea that public bodies are allowed to erect artificial barriers like this, and we have noted that a FOI request is valid regardless of which email address or member of staff within an organisation it is sent to.

Today’s Sunday Times carries an article on very high salaries paid to some of those working in the “publicly funded arts world”. The article reports Antonio Pappano, the Royal Opera House’s Music Director, is paid more than £630,000 a year and is given four months a year off to carry out a second job as music director of a Rome orchestra.

While the Sunday Times’ paywall means we don’t have a direct link to their article; it appears to be based on much the same information as an article published a few days earlier by The Arts Desk.

The Sunday Times article states the Government has “expressed surprise at the sums paid” and Ed Vaizey the Culture Minister is quoted as saying:

“There really must be full transparency for all publicly funded arts bodies”.

There is also a statement from the Arts Council expressing a similar, though more limited, sentiment:

“Anybody in receipt of significant public money should be transparent about their core funding costs”.

The Arts Council, the main body which distributes public funding to the arts, is subject to the Freedom of Information Act. The Arts Council is listed on mySociety’s Freedom of Information website WhatDoTheyKnow.com which enables people to easily make requests for information in public. While the Arts Council is responsible for handing out the money, it does not necessarily know the details of how the recipient organisations spend it. The bodies which receive funds are not themselves yet subject to freedom of information law, irrespective of how much public money they receive or how dependent they are on that subsidy.

While it may take the Minister some time to legislate to ensure “full transparency for all publicly funded arts bodies” we are happy to add such bodies to our site on request right now, so our users can ask them, in public, about their activities.

As of today the following organisations are now listed on our site:

• The Royal Opera House
• The National Theatre
• English National Opera
• The Southbank Centre
• Birmingham Royal Ballet
• City of Birmingham Symphony Orchestra
• London Symphony Orchestra

We use the WhatDoTheyKnow site to actively campaign for expansion of Freedom of Information to cover more public organisations. We list a number of bodies not formally subject to FOI some of which are present on the grounds they are substantially publicly funded.

For some time we have listed the British Board of Film Classification, a key arts regulatory body which is not subject to freedom of information law, and the British Film Institute; the latter two bodies are funded by the DCMS directly so Minister Ed Vaizey may well be able to get them to voluntarily comply with FOI legislation first thing on Monday morning.

A particular set of arts funding bodies which some of our users have made us aware they would like to see subject to the act are the UK Screen Agencies (eg. Film Agency Wales) which distribute public funds to the film culture sector.

Please contact the WhatDoTheyKnow team if you have any suggestions for further bodies which you would like to see us list on our site.

On Monday the 12th of April 2010 Parliament was formally dissolved in advance of the forthcoming general election. This has prompted some interesting, and rather bizarre, responses to the Freedom of Information requests which have been made to the House of Commons and House of Lords since dissolution. Each such request made via mySociety’s Freedom of Information website WhatDoTheyKnow.com has received a standard reply stating:

When Parliament has been dissolved there is no ‘House of Commons/Lords’ for the purposes of Part 1 of Schedule 1 to the 2000 Act, and there is therefore no ‘public authority’ to which the 20 day deadline under section 10 of the 2000 Act is capable of applying. The time limits do not, therefore, apply during the period of Dissolution.

The effect of the 2000 Act, including its time limits, resumes when the new House of Commons/Lords first meets.

Requests which were due to receive a response during the period parliament is dissolved have had their “clocks” stopped, with notices saying:

As your request was received before the House dissolved, the 20 working day time limit of your request will be split, ceasing on 12 April 2010 and resuming on 18 May 2010 when the new Parliament first meets.

As mySociety’s Freedom of Information website WhatDoTheyKnow automatically publishes requests, correspondence and responses online it’s not just the requestors who can see those responses, anyone can.

During the 2005 election according to the UK FOI blog Parliament placed a notice on its website saying it had consulted with the Information Commissioner and agreed the procedure for extending the time limit for a response.

Clearly the Houses of Parliament still have staff employed and people are still acknowledging the FOI requests. While both houses have stopped meeting, the institutions behind them must surely still be operating, and to claim they have ceased to exist is bordering on the utterly ludicrous.

Are the staff who would otherwise be in a position to respond to requests for things like viewer statistics for the Parliament Live TV stream, content of the Commons’ Intranet or cost of the Parliament Education Service not at their desks at the moment? If they are who’s employing them? Who’s paying them? While it is presumably a busy time for those staff preparing for a new intake of MPs; you might think that without MPs and Lords around it may be a quite time for many staff who might want to use the opportunity to catch up with correspondence like FOI requests. Perhaps in the midst of all this rather British oddness we should be happy that at least the parliament website hasn’t been turned off at this time of peak interest in the nation about parliament and our democratic system.

WhatDoTheyKnow already has to be aware of public holidays and follows some rather complex rules when it comes to calculating deadlines for responses however we have decided against updating the system to deal with this new and unexpected situation. We don’t think it is right that the institution of Parliament should consider itsself not to exist during an election period. We still be marking FOI requests as “late” when the twenty working day statutory time limit has expired regardless of the odd stance being taken by Parliamentary officials.

It seems Transport for London (TfL) really didn’t want anyone to be able to get hold of their internal guidelines describing how they deal with congestion charge appeals. Now though, thanks to mySociety’s freedom of information site WhatDoTheyKnow anyone wanting to find out in what circumstances TfL will cancel a congestion charge penalty can read the document detailing TfL’s criteria themselves.

I believe there are basic principles involved here; we all ought be able to find out what the law is, both “in statue” and “in practice”; it is right that we can find out the detailed rules which are being applied to the application of the congestion charge in London. I think that this request, enabling that, has been an excellent use of the Freedom of Information Act; it also shows how using the access to information laws can redress the balance of power between the citizen and the state.

The Road User Charging (Enforcement and Adjudication) (London) Regulations 2001 (the law) describes six circumstances in which someone served with a Penalty Charge Notice relating to the London Congestion Charge can make representations against it. However in practice TfL are in-fact allowing representations on a much wider basis. Now the internal document is available it can be seen that even the detailed: “Helping you with your Congestion Charging Penalty Charge Notice” information sheet offered by TfL does not contain the full details of what is and is not accepted as a valid reason for not paying the congestion charge.

Members of the public can now find out that TfL is happy to waive the congestion charge for those who are travelling “to register a death or travelling to hospital due to death of relative”, as long as proof of the death is provided, but not for someone who is “travelling to attend a funeral”. The document also suggests TfL won’t waive the charge if your vehicle has a breakdown and is recovered while the charge is operational; but the charge will be waived if, as a result of being clamped by a local authority, you have to collect your car from within the zone. Reassurance that TfL won’t pursue you for your congestion charge after you’re dead (assuming someone proves you’re really dead to TfL) is also provided.

There is a wealth of detail in the document, including revelations that foreign military vehicles are subject to the charge, but UK ones are not; along with details of circumstances where people will be given a second chance ie. their first appeal will be allowed but second and subsequent ones will not.

The public availability of this document may well make TfL’s life easier; some people may no longer bother making appeals in circumstances where they know they’ll be rejected and others will be able to phrase their appeal letters in such a way that it makes it easy for TfL staff to assess them against their criteria and accept them.

Request Details
Transport for London (TfL) is responsible for the London Congestion Charge. A document entitled: “Criteria for dealing with Representations and Appeals” describes the procedure TfL staff use to determine if someone’s appeal against a congestion charge penalty will be be accepted or rejected. This document was the subject of a Freedom of Information request made January 2008 which was initially refused. The argument TfL made against disclosure was that releasing the document would prejudice the exercise of TFL’s functions; Freedom of Information Act exemptions under S.30 (Investigations and proceedings conducted by public authorities) and S.31 (Law enforcement) were claimed.

On appeal the information commissioner’s office issued a decision notice saying it agreed with TfL that “the public interest in maintaining the exemption outweighs the public interest in disclosure”. The individual who had requested the document was persistent, and took his case to the information tribunal; there the information commissioner’s decision was overturned and TfL were ordered to release the document. The tribunal ordered the document be released to the original requestor by the 23rd of December 2009. A WhatDoTheyKnow.com user had made a separate request for the same document on the 8th of December 2009, and received it on the 7th of January 2010.

TfL still have not placed the released document on their disclosure log, which is perhaps an indication they’re still not too keen on the fact they’ve been compelled to release it.