The House of Commons Public Administration and Constitutional Affairs Committee is currently conducting an inquiry into the Cabinet Office’s Clearing House function. We have submitted written evidence to the Committee building on our recent report “Reforming Freedom of Information: Improvements to strengthen access to information in the UK”. We outline how tactics used by the Cabinet Office fit into a wider pattern of evasion, and how Scottish FOI legislation provides a model for how these issues can be addressed. 

Our full submission can be read online, or downloaded as a PDF. Written evidence from other organisations and individuals can be found on the Parliament website.  A summary of our evidence and recommendations is below. 

Recommendations

• The Clearing House, and/or any other FOI coordinating body, should be compelled to operate in a fully transparent manner, publishing its procedures, decisions and appeals data.
• The Freedom of Information Act (FOIA) should be revised to improve clarity of process and to close procedural loopholes that currently frustrate disclosure and effective regulation.
• FOIA should be revised to include a legal obligation upon public authorities and the regulator to collect and publish data on the administration of the Act. 
• The regulation of the FOIA should be split from the current Information Commissioner’s Office, where its budget and importance is dwarfed by data protection work, and constituted as an individual entity focused solely on FOI. 
• The oversight of the FOI regulator should be migrated from its current Ministerial portfolio, where it is vulnerable to political pressure and influence, and should instead become accountable to Parliament. 

Contents

Q1: The Cabinet Office’s compliance with and implementation of the Freedom of Information Act 2000

• Central Government statistics
• ICO decision notices
• Procedural complaints
• Relevance to Clearing House

Q2: Role and operation of Clearing House

• History and available information about the Clearing House
• Addressing the core problem
• Directly addressing delay and obstruction tactics

Summary

• In official statistics, the Cabinet Office stands out as having a lower than average percentage of requests for information fully granted, and a higher percentage of requests that were not returned within the 20 day statutory limit. 
• The Cabinet Office has received a high number of decision notices from the ICO, with over 50% of complaints upheld or partially upheld in all but four years (2014-2017). 
• The highest number of complaints are upheld in procedural areas, which, taken in combination with wider patterns and specific decisions, are reflective of tactics used to delay or obstruct the release of information. For instance, administrative silence/stonewalling can be a highly effective tactic to delay the long term release of information. 
• While a coordinating function can be legitimate, that the Clearing House is based in the Cabinet Office is a cause for concern. There is a key question of whether the Clearing House reduces the volume or quality of information disclosures through permissible or impermissible means.
• Evidence from the information tribunal concerning the release of information related to the Clearing House should be seen as informative as to the general attitude towards transparency: by default withholding everything, and using every tool to delay scrutiny of this decision. 
• FOI requests should be ‘applicant’ and ‘purpose’ blind. The storage of unnecessary information about the applicant in the Clearing House system is an information hazard that raises reasonable suspicions that requests are not being treated as legally required.
• However, fixing the underlying problem requires more than changes in which information is gathered and stored. Impermissible methods (such as higher scrutiny for journalists) can be reframed as higher scrutiny for particular kinds of requests (that are likely to be requested by journalists). The root problem requires more effective ways of ensuring the correct information is made available promptly. 
• In general, concerns about coordinating bodies undermining the functioning of the Act should be directed at closing loopholes they (and any public authority) can use to delay or obstruct the release of information. 
• We recommend mirroring the approach used in Scottish Freedom of Information legislation to provide stronger clarity around time scales and administrative silence that can prevent delaying tactics. 
• More generally, the system of regulation could be improved by moving supervision and funding of the Information Commissioner’s FOI functions from government ministerial oversight (where there is clear capacity to limit resources for FOI enforcement) to Parliament. 

Our full submission can be read online, or downloaded as a PDF.

Header image: Photo by Maarten van den Heuvel on Unsplash

TheyWorkForYou’s alerts service helps keep people informed on things that happen across a range of UK legislatures (The UK Parliament, Welsh Assembly, Scottish Parliament and the London Assembly).

We send daily emails to subscribers about the activity of selected parliamentarians, or when defined phrases are used in debates or written questions or answers. On average, this means around 400,000 emails are sent a month. The service was originally intended to act as a way to notify people of their own MP’s parliamentary activity, but the keyword search also makes it a powerful free parliamentary monitoring tool.

Before our redesign of the alert emails (blog post to follow), we wanted to know more about what subscribers find useful.  So in February 2021 we ran a survey of users of our alerts, receiving 1,866 replies. Going by responses to a question on the reasons for alerts, 16% of respondents can be categorised as some kind of ‘professional’ user, who use alerts as part of their role in an organisation. The largest groups were in the charitable sector (40%) and the public sector (35%).

Generally the alerts serve their core (and largest) audience of ‘ordinary citizens’ (ie those without a professional interest) well. Most are people using the service, as intended, to follow their own MP, and are generally interested in the kind of content the alerts service provides.

Free text answers showed general satisfaction among users.  Professional users are mainly from the charitable or public sector, and differ in making more use of keyword searches and finding vote information less useful.

What TheyWorkForYou content do users have alerts for?

Respondents were given a set of options on what their alert tracked and could pick more than one. Almost all citizens (94%) and a fair few of professional users (67%) had an alert tracking their own MP.

Professional users were far more likely to make use of keyword/issue searches (69% to 30% for citizens) and to follow Lords (22% to 9%), which may be because Lords often focus on specific areas of interest.

New and old users showed similar usage of alerts. One respondent was a parent of an MP, using the site to keep up with their contributions.

What content do users find useful?

Respondents were given a tick-box question to let them select which alert content was useful.

All options were considered useful by more than 50% of both groups. The most useful content for citizens was votes (87%), followed by written questions/answers(82%) and speeches (79%).

For professionals, it was written questions/answers (89%), speeches (76%) and written statements (68%). The largest difference is in votes, which citizens see as useful, but professionals make less use of (although still seen as useful by 59% of professional users).

This survey has helped us understand more about the different users of alerts and their different needs, and shaped our views on how they could be improved to be more useful. The use by the charitable and public sector is especially interesting, because they show the indirect impact of making information more accessible.

For more information, a 2016 GovLab report explored the impact of this kind of usage of the site. While the improvements in the official Hansard site over the last five years mean there is less of a sharp divide between the official site and TheyWorkForYou,  email alerts remain a key way that TheyWorkForYou helps make Parliamentary activity more transparent for all.

Header image: Photo by Possessed Photography on Unsplash

On TheyWorkForYou’s voting records, we have made comparisons with the party consensus visible in more places, and changed how we calculate that consensus.

Since 2015, MP’s summary pages on TheyWorkForYou have highlighted votes which differ from those of the other MPs in their party. Over time, issues have emerged with how this process works, and recently we have made several changes to address these.

This year we have:

• Made party comparisons more prominent.
• Adjusted party comparisons to only compare against MPs who had the opportunity to vote in the same divisions, rather than the all time party record.

This fits into a longer running process of reviewing our public statistics. This update is not the end of our thinking around voting records, and we will have more to say in future about our work in this area.

Making party comparisons more prominent

The intended flow of TheyWorkForYou is that people arrive, search for their MP, are presented by the summary page (with divergences from party highlighted), and can click through to the voting record for more information.

What has become more common is that users skip the intended flow through searching for a search record directly (“[MP] voting record” will usually lead to TheyWorkForYou).

Alternatively, screenshots of a specific policy voting record can be shared directly on social media. As we were highlighting divergences from party in the summary rather than voting records page, this context was being calculated, but we weren’t showing it in all the places where it might be relevant/useful.

Our assumption that the MP’s summary page is seen more than the voting record still generally holds up, but as the graph below shows, during 2019 there were almost as many views of the voting records of MPs as of the summary pages.

In February 2021,  we made a change to bring the party context into the voting record page itself and added additional context about the time range of the votes used in a comparison. Similar to the summary page, this highlights votes where an MP differs from the general party consensus. We have now extended this to also indicate when a vote is in line with the party consensus.

The party comparison is included when the party and MP are aligned.

A graph showing the growing ratio of views of voting record pages to views of summary record pages, with the two measures almost the same in 2019.

Improving the quality of party comparisons

As a side effect of making party comparisons more prominent, some existing problems with the way we displayed data have become more obvious. As years go by, the time range covered by voting records has increased, and this has caused the method of comparing votes to parties to become more strained.

Behind the scenes, the original system compared an MP’s position to a ‘party score’ for a policy area. This was generated from the votes of all current MPs in a party in that policy area. Over time, and with turnover of MPs, this has become less of a useful measure.

For instance, a reversal of a party’s position over multiple parliaments leads to new MPs being compared to a score weighted towards votes in previous parliaments. New MPs were highlighted as being outside the party consensus, while in reality following the party whip.

We have made a change so that MPs are only compared with their direct counterparts: people of their party who had the opportunity to take part in the same votes. The aggregate effect of this is that most MPs are now slightly more similar to their parties (generally making no change to how they are displayed on the site), and MPs who joined in more recent cohorts are recognised as being within the modern consensus. A more detailed analysis of this shift can be read here.

New approaches to party switchers

One problem in presenting voting records is in how to present good comparisons for MPs who changed parties. Historically this does not come up often, but became a more prominent issue in 2019.

Comparing a MP to their new party means they will have a large amount of difference, without reflecting if they followed the party line at the time of a vote. For instance, someone switching from Labour to the Liberal Democrats would be compared to a Liberal Democrat party record that they had frequently voted differently from. This is an accurate reflection of what has happened, but there is obviously extra context that is useful.

Given that most party switchers are now ex-MPs and spent the majority of their parliamentary time with their original party, the default approach is to retain a comparison to the original party, while adding an information box explaining that they have switched parties. This means that party comparisons remain active for MPs who have become independent through losing the whip (which can be a temporary event).

In instances where this approach doesn’t make sense (e.g. Jeffery M. Donaldson changed parties in 2003, and has remained with his new party since), the comparison is reversed to use the current party.  This approach has also been taken for the two Alba MPs who moved from the SNP in March 2021.

This change means that MPs whose party status changes will have a better default comparison, while allowing some discretion to choose a different approach for MPs where this does not make sense.

Ongoing thinking

These changes are part of an ongoing process around our public statistics. This time last year we published the thinking behind decisions to publish less information on TheyWorkForYou and WriteToThem in general. There are many ongoing questions about voting records and how to best display this information in a way that is both accurate and useful to the public.

This update is not the end of that thinking, and we will have more to say in future about our work in this area.

Header image: UK Parliament flickr

Yesterday John Edwards, the government’s preferred candidate to be the next Information Commissioner, was questioned by the House of Commons’ DCMS committee.

During this session, Mr Edwards made several comments that raised alarm bells for us. Generally, he seemed more concerned with hypothetical abuse of the system by the public, rather than the demonstrable behaviour of the authorities that he would be charged with regulating. He also expressed support for the idea of charging requesters (contrary to the ICO’s current position and rejected by the 2016 review).

While it is not good that those were his instinctive reactions, the general sense is that he has not yet had a chance to become fully acquainted with Freedom of Information, despite it being a significant part of his future role. The bigger problem is that any potential candidate for the job (now or in the future) is likely to be in a similar position.

The UK Information Commissioner is two roles joined into one. In other jurisdictions these would separately be called the Privacy Commissioner (who oversees data protection) and Information Commissioner (who oversees access to information laws). When the role was created, there was more of a balance between the two aspects, but the growing significance of data protection in a digital world has meant that this side of the role has increased in focus and funding. Currently, less than 10% of the funding the ICO receives is for Freedom of Information related work.

While it is possible that some people exist who could handle both sides of the job equally well, recruiting with an emphasis on data protection minimises any focus on the FOI role.

John Edwards is currently the Privacy Commissioner in New Zealand, where there is an Ombudsman who separately deals with the equivalent of Freedom of Information complaints. While Elizabeth Denham, the current UK Information Commissioner had prior experience of a joint role in British Columbia, her role at the national level in Canada was similarly on the privacy side.

Here in the UK, this is likely to be a recurring issue for Freedom of Information. It has been positioned as a sideline to the ICO’s main priorities and something that new commissioners have to catch up on, rather than hitting the ground running with a clear sense of the problems inherent in the field.

In our recent report, we argued for a separate and independent FOI Commissioner, mirroring the arrangement in Scotland. We dug into the historical reasons why the roles were joined, and found that it had resulted from uncertainty about different offices applying different ideas about what ‘personal data’ is. The solidification and internationalisation of data protection rules (which also helps create an international recruiting pool for the role) makes this far less of a concern now, while the same trend has reduced the prominence of FOI in the joint role.

It is also our belief that the FOI Commissioner should be independent of the government. By this we mean that as a constitutional watchdog, the Commissioner should operate under the Officer of Parliament model, and receive oversight and funding from Parliament rather than the government. The current situation presents an obvious conflict of interest, where the government controls funding for its own regulator.

Freedom of Information has survived direct challenges in this country and across the world, but the danger (and default trajectory) for our Right To Know is not that it is abolished, but that it becomes less effective as time goes on. State activity moves to private contractors and the act is not extended to follow them.  The lack of effective and well-funded enforcement from the ICO means increasingly open non-compliance, as public bodies discover loopholes that allow them to drag out responding to requests. The solutions to these problems are not difficult (and in many cases can borrow from processes in Scottish Freedom of Information legislation), but require the political will not just to defend the FOI act as it exists, but to argue for its role into the future.

As we approach the UK’s 20 year anniversary of Freedom of Information in 2025, we believe that change is needed to reclaim the ground that has been lost, and to strengthen Freedom of Information as a continuing practical and effective tool of government accountability. To this end, we are actively seeking to work with interested organisations and stakeholders to safeguard our right to information and place it on a more sustainable footing. In the run up to the next election, expected in 2024, we hope to see parties from across the political spectrum include provisions to defend and improve FOI operation in their manifestos. We also hope to explore opportunities for FOI to flourish in the devolved nations. To keep up with our work, sign up to our mailing list.

One goal of our Climate Action Plans Explorer is to make it easier for good ideas around cutting carbon to be shared and replicated between local areas. For this to happen, the service should be good at helping people in one area identify other areas that are dealing with similar situations or problems.

Currently the climate plans website shows the physical neighbours on a council’s page, but there’s every chance that councils are geographically close while being very different in other ways. We have been exploring an approach that identifies which authorities have similar causes of emissions, with the goal that this leads to better discovery of common approaches to reducing those emissions.

The idea of automatically grouping councils using data is not a new one. The CIPFA nearest neighbours dataset suggests a set of councils that are similar to an input authority (based on “41 metrics using a wide range of socio-economic indicators”). However, this dataset is not open, only covers councils in England rather than across the UK, and is not directly focused on the emissions problem.

This blog post explores our experiment in using the BEIS dataset of carbon dioxide emissions to identify councils with similar emissions profiles. A demo of this approach can be found here (it may take a minute  to load).

Using the ‘subset’ dataset in the BEIS data (which excludes emissions local authorities cannot influence), we calculated the per person emissions in each local authority for the five groupings of emissions (Industry, Commercial, Domestic, Public Sector and Transport). We calculated the ‘distance’ between all local authorities based on how far they differed within each of these five areas. For each authority, we can now identify which other authorities have the most similar profile of emissions.

We also wanted to use this data to tell more of a story about why authorities are and are not similar. We’ve done this in two ways.

The first is converting the difficult to parse ‘emissions per type per person’ number into relative deciles, where all authorities are ranked from highest to lowest and assigned a decile from one to ten (where ten is the highest level of emissions). This makes it easy to see at a glance how a council’s emissions relate to other authorities. For instance, the following table shows the emissions deciles for Leeds City Council. This shows a relatively high set of emissions for the Commercial and Public Sector, while being just below average for Industry, Domestic and Transport.

The second story-telling approach is to put easy-to-understand labels on groups of councils to make the similarities more obvious. We’ve used k-means clustering to try and identify groups of councils that are more similar to each other than to other groups of councils. Given the way that the data is arranged, there seemed to be a sweet spot at six and nine clusters, and as an experiment we looked at what the six clusters looked like.

How ‘Urban Mainstream’ Industrial emissions differ from other local authorities using a raincloud plot. 

Using tools demonstrated in this jupyter notebook, we looked at the features of the six clusters and grouped these into three “Mainstream” clusters (which were generally similar to each other but with some difference in features), and three “Outlier” clusters, which tended to be smaller, and much further outside the mainstream. Reviewing the properties of these labels, these were relabelled into six categories that at a glance gets the broad feature of an area across.

This data is not tightly clustered, and the number of clusters could be expanded or contracted, but six seemed to hit a good spot before there were more clusters that only had a small number of authorities. The map below shows how these clusters are spread across the country. This  map uses an exploded cartogram approach, where authorities with larger populations appear bigger. The authority is then positioned broadly close to their original position (so the blank space has no meaning).

Joining these different approaches allowed us to build a demo where for any local authority, you can get a short description of the emissions profile and cluster, and identify councils that are similar. This demo can be explored here (it may take a minute to load). The description for Croydon looks like this:

This is not the only possible way of crunching the numbers.

For example, the first thing we did was adjust the emissions data to be per person. This helps simplify comparison between areas of different sizes, but how many people are in an area is information that is relevant in helping councils find similar councils.

The BEIS data also breaks down those five categories by more variables (which might better separate agriculture from other kinds of industry for instance): an alternative approach could make more use of these.

We are considering using multiple different measures to help councils explore similar areas. This could include situation features like flood risk, deprivation scores and EPC data on household energy efficiency, but could also include, for example,  that some councils are more politically similar to each other, and may find it easier to transfer ideas.

If you have any feedback, positive or negative, on this approach, please email me at alex.parsons@mysociety.org, make a comment below or raise an issue on the GitHub repo.

The datasets and processing steps are available on GitHub.

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Image: Max Böttinger

A couple of weeks ago, we announced that we’d added new functionality to WhatDoTheyKnow to help people challenge FOI refusals. In fact, this tool had been quietly rolled out at the end of May, giving us a little time to ensure everything was working before we shared it. 

It tries to detect which exemptions were applied where information was withheld, and provides advice on next steps. This might involve making a revised request or asking for clarification, and the tool can also provide text fragments to use in a request for an internal review of the decision. 

It is early days, but just in the last month users have sent 158 requests for internal review after seeing this advice. Most of these are still waiting for a reply, but around a third (16) of complete internal reviews have led to an improvement in the amount of information released. This is above the monthly average for the last year, but we need to wait for more data to determine if this will represent a sustained increase in the success of appeals. 

As time goes on, we will be able to examine whether specific bits of advice or challenges to particular kinds of refusals are more likely to be successful than others. The goal is to give requesters the knowledge required to successfully challenge incorrect use of exemptions, and increase the percentage of internal reviews made through WhatDoTheyKnow that successfully lead to more information being released, either through increasing the quality and substance of appeals, or reducing appeals where exemptions have been applied correctly. 

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Image: Waldemar Brandt

To understand the effectiveness of Freedom of Information laws requires good quality information about the volume of requests and how they are being processed.  Picking up on previous work investigating FOI statistics for central and local government, we have built a new minisite that covers Cabinet Office statistics on Freedom of Information in UK central government and OSIC statistics on Freedom of Information in Scotland. This site is up-to-date with 2020 statistics, and can be viewed at: https://research.mysociety.org/sites/foi-monitor

We can do this because there are already sets of statistics gathered and publicly released for several groups of public authorities in the UK. But in most jurisdictions there is not good information about the overall working of the system, with data often limited to issues that are brought to the attention of the local equivalent of an Information Commissioner. In our recent report we made the case for more information gathering in the UK. 

In the UK, there are two good partial sources of statistics about Freedom of Information requests. The Office of the Scottish Information Commissioner (OSIC) has a quarterly process where Scottish authorities deposit statistics about the SAR, FOI and EIR requests they have received, how they have been processed, and how exemptions and exceptions were applied.  For the rest of the UK, there is far less data on the operation of the Freedom of Information Act. The Cabinet Office publishes a similar quarterly series covering FOI statistics covering requests made to a selection of central government ministries, departments and agencies.  

In principle, FOI in the UK applies to far more public authorities than FOI in Scotland, but in terms of available information, the OSIC collects more information from more agencies. The Cabinet Office collects 76 sets of statistics from 40 agencies, while the OSIC collects 110 from 507. This means that the available picture of information on FOI is far more complete in Scotland. In both cases information is published and accessible as spreadsheets, making it possible to analyse differences between authorities and change over time. 

However, this information is not always easy to understand or use. To generalise our previous analysis of Cabinet Office statistics, we have built a new minisite that also applies to information about Scottish authorities and in principle could be generalised for other jurisdictions. 

This allows examination of trends in individual statistics (overall request volumes, how those requests were processed, or how individual exemptions were used) across sectors or individual authorities. These statistics are up to date with 2020 information. 

We hope this will be a useful resource for all those interested in UK FOI statistics, and as a potential model for how FOI statistics collected can be made easier to access and understand.

This site can be viewed at https://research.mysociety.org/sites/foi-monitor, and the source code is available on GitHub. 

The creation of this mini-site was partially supported by a Adesssium grant.

Header image: Photo by Tobias Messer on Unsplash

Exploring the history of expansions of FOI to private operators for our report on Reforming FOI led to trying to understand the history of how Network Rail became subject to FOI and EIR. This blog post explores how in very niche circumstances, the highest information court is the Office for National Statistics. 

Network Rail is a body that owns and manages the infrastructure of most of the railway network in Great Britain (England, Scotland and Wales). As such, it holds information of potential public interest, but its status under Freedom of Information (FOI) and the Environmental Information Regulations (EIR) has been contested. A 2006 ICO decision concluded that Network Rail was not a public authority for the purposes of FOI (FER0071801 /FER0087031), but was for the purposes of EIR. This decision was overturned by the Information Tribunal (EA/2006/0061 EA2006/0062) in 2007, who held it was not a public authority for the purposes of EIR either. These decisions are now mostly irrelevant as in 2015 Network Rail became unambiguously a public body subject to FOI and EIR, and was added under s.5 to the FOIA schedule. The complication is that this change was not a political decision, but was effectively decided by the Office of National Statistics.

When implementing the 2010 European System of Accounts (ESA10) in 2014, the Office of National Statistics (ONS) retroactively reclassified Network Rail as a “central government controlled, nonmarket body classified as part of the Central Government sector”, and as having been so since 2004. This did not result from any new understanding of facts, but ESA10 included several new tests of government ‘control’ of an organisation: the ‘degree of financing’ and the degree of ‘risk exposure’. Previous tests (appointment of officers, provisions of enabling instruments, contractual agreements) had not concluded that Network Rail was government controlled but these new tests changed that picture.

The ‘degree of financing’ test required the government to ‘fully or close to fully’ fund the body for it to count as government controlled, this was not the case with Network Rail. The second test of risk exposure is sensitive to the question of who holds debt for the organisation. In this case, ONS argued that the debt was guaranteed by the Department for Transport, and there was an effective statutory obligation for the government to step in if Network Rail was to collapse. This by ESA10 criteria made Network Rail government controlled and part of the public sector. The reclassification was announced in 2014, and the new framework agreement between Network Rail and the Department of Transport agreed that Network Rail should be subject to Freedom of Information (1.15). While the body was added under section 5 of the FOI Act (rare), this order is in other respects similar to the frequent amendments made under section 4 as it reflected a change in ‘the public sector’ rather than including non-public sector bodies fulfilling a public function under the Act.

Given accounting change means that retrospectively Network Rail should be seen as part of the government accounts in 2007, does this have any impact on the underlying logic of the Information Tribunal decision that it was not subject to EIR at this time? In this case, the Information Tribunal did consider the degree of government control through the same test of board appointment and public funding that the ONS similarly considered Network Rail to ‘pass’. It did not consider the question of where the debt is guaranteed, but this would have been a novel approach. This wider idea of government control might be useful in future questions of examining government ‘control’ of an organisation for EIR purposes. However, subsequent decisions by the Upper Tribunal have suggested a strict definition of control as meaning “no genuine autonomy”, creating a high bar for a control based argument. The debt test of control is an inversion of the typical control argument. The organisation may (like Network Rail) have fairly clear operational autonomy but the government does not have autonomy because it holds all of the risk and none of the decision-making power. This is a situation that the public accounts (and good governance rules) should seek to correct but may not meet the strict test of control.

This more general idea of independence from government was a supporting part of the Information Tribunal’s argument and not the key argument. The main difference between the Information Tribunal and ONS arguments is this question of what would happen if Network Rail did not exist. The Information Tribunal argue that the services provided were not necessarily a public function, as “[i]f [National Rail Limited] did not perform these functions, they would be performed by some other similar body, not by central government”. In contrast, the ONS’ position was that the Department of Transport was on the hook both on the debt guarantee and through the Railways Act 2005 maintaining an older responsibility to “protect the interests of users of railway services”. This is interpreted by ONS as implying the government would need to keep the railways operating as “that government could allow Network Rail Ltd to fail while stepping in to support and protect the wider rail industry seems questionable, given that no one else is bearing any significant financial risks in relation to Network Rail”[1]. The evaluation of who holds the financial risk questions the Information Tribunal’s premise that another similar body rather than central government would perform the functions of Network Rail. As Network Rail’s functions were only possible as a result of substantial arm’s length support from the central government, the same would be true for any replacement organisation and so the central government is not a disinterested party. This undermines the argument about lack of control, but it was just one supporting argument. It is unclear if the approach would have led to a different decision, but it seems unlikely.

In the niche situation that government control is a result of risk exposure, the Network Rail case shows the Information Tribunal and Upper Tribunal are not the only possible avenue. A  large and significant organisation that was judged to not be subject to FOI and EIR is now retrospectively understood to have been part of the government accounts throughout the whole period. Accountancy arguments of control may or may not convince the courts, but they only need to convince the accountants.

Footnotes:

• 1: Document 2.1 in this FOI

Header image: Photo by Felix on Unsplash

Following our report into Reforming Freedom of Information in the UK, there were several pieces of research that didn’t fit inside the final report. This exploration of differences in outcome and response times is one of them. 

Freedom of information law in both Scotland and wider UK jurisdictions allows requesters who have had information withheld to request an internal review, where the authority is asked to reassess their original decision. This is a process that frequently changes the outcome. Based on data in Scotland, 40% of internal reviews result in some form of new information being released, and based on the UK central government roughly 25% of internal reviews lead to more information being released.

After internal reviews, requesters can appeal exemptions (or complain about delays in response) to the regulator. In Scotland this regulator is the Office of the Scottish Information Commission (OSIC), while in the rest of the UK this regulator is the Information Commissioner’s Office (ICO). In response to appeals, the ICO can issue a decision notice on whether an authority has properly complied with the law, and if not, how to rectify the situation.

In general,  the OSIC is more likely to rule in favour of information disclosure than the ICO. Building on previous analysis by OpenDemocracy, in the 2015-2019 time range 53% of ICO decision notices fully upheld the original decision of the authority, whereas for the equivalent time range only 34% of OSIC rulings were fully upheld. The average time from complaint to decision notice was 120 days for an ICO complaint and 140 for an OSIC complaint. For OSIC decision notices, decisions that found in favour of the authority on average took longer (97 as opposed to 126 days), while for the ICO the reverse was true but with a smaller difference — decisions in favour of the authority took less time (120 as opposed to 125 days). In both cases, decisions that led to partial results took longer.

Diagram 1 – Decision notice outcomes for each regulator

Diagram 2 – Average days taken to reach different conclusions by different regulators.

Table 1 – Decision notice outcomes for each regulator

There are several different explanations for these differences. It may be that the stronger prejudice threshold in FOISA leads to more decisions in favour of the applicant, or it could reflect a different attitude of the regulator in how they approach decisions. Regardless of the mechanism, a typical complaint to the OSIC is more likely to result in a change to the decision, than the typical complaint to the ICO.

In both contexts, ministers have the ability to override the decisions of the Information Commissioner. This power is more restricted in Scotland, relating only to information of “exceptional sensitivity” that has been requested from the Scottish administration. This power has been used multiple times by ministers in rUK but has not been used in Scotland.

Header image: Photo by Monty Allen on Unsplash

Following our report into Reforming Freedom of Information in the UK, there were several pieces of research that didn’t fit inside the final report. This exploration of differences in outcome and response times is one of them. 

The right to access environmental information in the UK is the result of the implementation of an international convention (Aarhus Convention 1998) to provide greater access to environmental information, public participation in environmental decision making and a legal framework that allows challenge to decisions that run against the above. There are separate regulations creating the right for EIRs in Scotland (Environmental Information (Scotland) Regulations 2004) and rUK (Environmental Information Regulations 2004). Unlike FOI there are no substantial differences in the legal basis of EIR requests in Scotland. In both cases, it is a local implementation of directive 2003/4/EC of the European Parliament and of the Council and exceptions and time scales are the same in both jurisdictions.

The key differences are:

• EIR applies to a narrower range of information than FOI.
• EIR applies to more types of organisations than FOI.
• EIR requests have a higher bar to rejection.

EIR information is a subset of FOI information[1] but a different set of exceptions apply and all exceptions include a public interest test. Authorities have to pass a harder test to withhold information in general. For emissions data, there are even fewer exemptions that can be used to withhold information. Data on usage in Scotland suggests that this leads to a higher rate of information being initially granted, and that appeals against use of exceptions are more successful.  79% of EIR requests yielded at least some of the requested information, compared to 75% of FOISA requests. There is also a slightly higher success rate for internal reviews for EIR requests. In 57% of EIR reviews the original review was upheld, compared to 60.4% in FOISA that were wholly/partially upheld. Direct comparison is difficult as by definition they are requests for different kinds of data, but EIR requests do seem to be more likely to return the information requested.

The regulations governing environmental information requests (EIRs) entered into force at the same time as the respective Freedom of Information Acts, but there are important differences between the two frameworks. The regulations apply only to Environmental Information, and so cover less information than FOI law does, but also bring new organisations into scope that are not covered by FOI laws. For instance, the ICO found in early 2020 that Heathrow airport was subject to EIR as it had functions entrusted by law. Bodies that carry out aspects of public administration are subject to EIR, but may not be to FOI. On the other hand, bodies that are only partially covered by the Freedom of Information Act may be exempt from EIR requests (for instance, the BBC).

Differences in Scotland

As in rUK, the definition of a Scottish public authority is wider under EIR than FOISA. This includes publicly-owned companies and those more generally under the “control” of a public authority. There are two points of distinction between the UK and Scottish legislation around what is covered. The first is that private bodies added under s.5 of the FOI Act are also explicitly added into coverage of EIR (the equivalent section in the UK says that inclusion under s.5 does not mean a body is subject to FOI). The second is a smaller point of distinction that the UK EIR reflects the language in the European directive that “any other body or other person, that carries out functions of public administration” are subject to EIR, but this is not present in the Scottish EIR. The result is that UK case law elsewhere that is focused on the definition of public administration is less applicable in Scotland, whereas as the OSIC put it (page 10), “[t]he decisions issued in Scotland have therefore focussed on the definition of “control” rather than of “public administrative functions”. That said, issues of control are not ignored in rUK case law with an upper tribunal judgement arguing this could only be engaged when “an entity had no genuine autonomy”. This distinction is of interest, because there are clear examples of when a body has been seen subject to EIR in Scotland but has been held not to be in rUK.

Through a combination of political decisions and OSIC decisions there are differences in equivalent bodies being subject to EIR in Scotland and rUK. Registered social landlords in Scotland were as of 2019 subject to EIR as a result of being added explicitly to FOISA, but the OSIC has held since 2014 that they were covered by EIR as they were under the control of the Scottish Housing Regulator. In the UK, the Upper Tribunal has ruled that similar registered social landlords in rUK are not “public authorities”. There are three possible explanations for this difference:

• A different legal context – the presence of a defined test around public administration has led to a more binary view of the importance of control in rUK law, compared to a more nuanced approach taken by the OSIC in the absence of a public administration test.
• A different regulatory context – the relationship between specific regulator and social landlord may be sufficiently different to pass “control” tests in Scotland that are not passed by the UK housing regulator.
• A different oversight context – OSIC may have been mistaken in their control test, but was not legally challenged.

This difference is mostly immaterial as Scottish FOI’s larger expansion to private organisations has made the difference on EIR irrelevant, but this reflects that differences in the practical availability of information rights can flow from for practicalities in regulation and oversight, as well as the law.

Fees are an example of regulatory difference where information is more accessible under UK EIR. Both EIR and FOI/FOISA regimes allow for a cost to be attached to the provision of information but FOI has a minimum ‘appropriate limit’ before this is engaged, and so most responses are uncharged. EIR has no minimum limit, and so all requesters may be charged the (small) costs of providing the information if the authority has made their charging regime public. As EIRs in Scotland and rUK are regulated by different bodies, practical differences in regulation even where the underlying law does not differ.

In a 2019 case, an ICO decision found that a ‘reasonable’ charge under EIR should effectively track the idea of an ‘appropriate limit’ in the Freedom of Information Act. The official guidance has not yet been updated to reflect this decision (through correspondence, this is still planned). The existing 2016 guidance did already argue that public authorities should ‘avoid routinely charging for all EIR requests’, but the equivalent OSIC guidance does not. The practical result of this is the ICO may uphold a complaint that Croydon Council should not charge a £50 fee for access to environmental information at all, whereas OSIC would agree that Glasgow City Council could charge £50 if this price was listed publicly. In practice, fees are rarely practically charged for EIR in Scotland but when the regulations are identical the dynamics of different regulators following different processes lead to differences in the practical implementation of EIR.

For more information, OSIC have published details on the distinction between EIRs and FOISA in Scotland. Paul Gibbons’s series in the Freedom of Information journal is a useful guide to the practical differences between the two legal regimes in rUK.

[1]: As FOIA and FOISA have specific exemptions for environmental data, in general requests that can be considered under EIR should be, rather than under FOI rules

Header image: Photo by Gemma Evans on Unsplash