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.
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.
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.
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.
Members of the team running mySociety’s freedom of information website WhatDoTheyKnow.com also campaign for improvements to freedom of information law.
Volunteer John Cross has been drawing his MP’s attention to a major loophole in the UK’s Freedom of Information Act which means that a company wholly owned by one local authority is subject to the act but a company owned by two local authorities is not. John’s MP, Peter Bottomley, has been convinced that this anomaly in the law does not make sense and has submitted an Early Day Motion calling for the loophole to be closed. The EDM also highlights the fact that currently a company owned 95% or even 99.5% by a single public authority is not subject to the provisions of the act, as only companies owned 100% by a single authority are currently covered.
The text of the motion states:
“That this House notes that section 6 of the Freedom of Information Act 2000 with certain exceptions makes companies wholly owned by the Crown or by a single public authority subject to the Act; further notes that a company wholly owned by two or more public authorities or 95 per cent. owned by a single public authority will be outside the scope of the Freedom of Information Act 2000; and calls for the closure of this loophole and for companies owned 90 per cent. or more by any number of public authorities to be subject to the Freedom of Information Act 2000.”
The motion is currently open for other MPs to sign-up to and show their support. If you would like to help increase the number of public bodies that are covered by Freedom of Information legislation please consider writing to your MP, asking them to add their name to the current signatories.
There are many situations where public authorities working together or even setting up jointly owned companies is commendable. Such arrangements can lead to savings though economies of scale and avoid duplication; we may see more such companies set up as a response to economic pressures. What is problematic though is the loss of accountability which currently occurs when public bodies come together and set up these companies without requiring them to follow the highest standards of openness, transparency and accountability.
Examples of Companies Which Would Be Made Subject to FOI if the Loophole was Closed:
- Connexions Nottinghamshire Limited – provides support services to young people and is jointly owned by Nottingham City Council and Nottinghamshire County Council.
- Coventry and Solihull Waste Disposal Company – owned two thirds by Coventry City Council and one third by Solihull MBC
- G-Mex Limited – Through its ownership of Destination Manchester Ltd and investment in Modesole Ltd, Manchester City Council has a 95% shareholding in G-Mex Limited
- Higher Education Statistics Agency (HESA) – this company is the official agency for the collection, analysis and dissemination of quantitative information about higher education.
- Manchester Airport PLC – the Manchester Airport Group is owned by the ten local authorities of Greater Manchester
- The Russell Group – is owned by, and represents 20 of the UK’s largest universities, the company’s aims as set out in documents filed on incorporation included “to influence and make representations to stakeholders and legislators”
Many housing associations, purchasing consortia, representative bodies and urban development companies are among the organisations which would be required to operate in a more transparent manner should this loophole be closed.
Many MPs and Lords use the Freedom of Information Act to obtain information from public authorities despite the fact they are able to table parliamentary questions. Occasionally they make their requests via mySociety’s freedom of information website WhatDoTheyKnow.com which ensures both the request, and its response, are freely available online. Surprisingly the freedom of information route can result in the release of more, and better quality, information than a written Parliamentary Question.
For example on the 12th of November 2009 Eleanor Laing the Conservative Shadow Minister for Justice submitted the following written Parliamentary Question:
To ask the Secretary of State for Health how many staff in his Department were employed on the management of freedom of information requests submitted to his Department in each year since 2005; and how much his Department spent on the management of such requests in each such year.
The response contained the number of staff per year as requested but with respect to the spending the parliamentary response stated: “The information requested on expenditure could be provided only at disproportionate cost.”
A very similar request for information had been made many months previously, in July, by WhatDoTheyKnow.com user and FOI campaigner Heather Brooke. The response to the FOI request contained more information, and more precise information, than Eleanor Laing had obtained via her parliamentary question. When the request was made via WhatDoTheyKnow how much staff substantially involved in answering requests were paid was disclosed, in detail.
While the costs of complying with a particular request are capped by regulations under the Freedom of Information Act, data on total costs of FOI compliance such as that released by this request allows the average costs of dealing with a request to be calculated.
MPs using WhatDoTheyKnow
Do let us know in the comments if you’ve spotted any more!
Today we have a strange story about a department that appears to think that it has a duty not to release information under FOI if it makes people angry.
It all starts in January 2009 the Department for Children, Schools and Families (DCSF) appointed an expert by the name of Graham Badman to conduct a review of elective home education in England. It probably goes without saying that this is an issue far from our concerns, and an issue that mySociety has no views on – what makes us interested is the process that followed.
Shortly after the publication of the report, Elaine Walton, a user of mySociety’s freedom of information website WhatDoTheyKnow.com requested copies of communications between the Department for Children, Schools and Families and Nektus Ltd. the company through which it appears Mr Badman was paid for his work.
According to email replies to Ms Walton, the DCSF located two relevant invoices which show how much money was paid, but refused to disclose them. Strangely, though, they were not refused on grounds of commercial confidentiality, but rather on something more unusual. Here are the exemptions they cited:
- Section 40 – Personal Information
- Section 38 – Health and safety
Health and Safety? A little investigation reveals more.
When Ms Walton appealed against this decision, an internal review was carried out within the DSCF. The internal review’s findings stated that Mr Badman was likely become a victim of harassment if certain personal details were made public, hence a health and safety concern, and hence no publication of these invoices. Fair enough – nobody would be in favour of revealing private, sensitive information that would endanger anyone’s life or family, especially in the presence of a known threat. But take a look at this:
“That the Department had initially been drafting a response that included the release of invoices with only personal data redacted. But before the draft was complete it was apparent that there was a campaign of harassment and vilification against Graham Badman and other individuals/organisations that had contributed to the Report. In the light of this, at the weekly review meeting of FOI cases, it was considered that the balance of public interest might have shifted towards withholding.”
What is very curious here is the admission that the department had been thinking of releasing the invoices with personal data hidden (ie no home address, bank details etc). But then because of a campaign of harassment, it was decided that they wouldn’t publish anything at all. So not just no personal information, but no dates, no amounts of money, nothing.
What is so unease-making about this FOI decision is that it appears to be saying that departments may conceal information on how much public money has been spent on something because releasing that information will make some angry people even angrier. Surely this can’t be right – if it were every budget would be conducted in complete secrecy. We would encourage the Information Commissioner’s Office to take a look.
mySociety’s Freedom of Information website WhatDoTheyKnow is designed to appear simple and straightforward to users. That appearance belies the fact that behind the scenes a significant amount of effort goes into making sure both those making freedom of information requests and those answering them have a positive experience of the site. While the site is almost entirely automated sometimes human involvement is necessary. This article highlights those key “edge cases” which are dealt with by the staff and volunteers who make up the WhatDoTheyKnow team.
In the last year 15,233 freedom of information requests have been made via WhatDoTheyKnow.
444 messages on 360 requests (2.3%) had to be manually placed on the correct request as a result of authorities not sending replies to the email address given. The errors are introduced as authorities apparently manually transcribe email addresses from incoming email into correspondence management systems. There have been suggestions some may even print out and scan-in emails into such systems. WhatDoTheyKnow’s code has been improved in light of experience, common errors are now detected automatically and in many cases the system suggests which request the message was intended to be directed to.
In terms of outgoing messages just 52 (0.3%) requests over the course of the year were marked as receiving an error message in response and users marked 94 (0.6%) as requiring administrator attention. These are generally either transient errors which simply require a message to be resent or prompt us to check and update the contact details we hold for a particular organisation. Regularly there are problems with authority’s spam filters and we have to encourage them to change the way their filters are set up to allow messages from WhatDoTheyKnow.com through.
119 (0.8%) requests were at some point marked as “Handled by Post”. In many of these cases users eventually persuaded authorities to release the information in electronic form. Where information is supplied outside the site users can add annotations describing the information released, then can link to copies of the data they have posted online, or as has been done in respect of 14 requests (0.1% of the total, 11% of those handled by post) they can supply the information to WhatDoTheyKnow to upload manually. When the site was being designed there was a worry that authorities would reply to many requests by post. This has not occurred, in part perhaps because the freedom of information act contains a provision (section 11) requiring the requestor’s preferred means of communication to be used where it is reasonable. A requestor using an @whatdotheyknow email address is clearly expressing a preference for a reply to be made electronically via the site.
One of the major challenges facing the site is keeping it operating in the face of the UK’s libel laws. Unlike in other countries, such as the US, we cannot publish statements on our users’ behalf without taking the risk of being sued for libel ourselves. Even simply republishing FOI responses from public authorities is not without risk in the UK. While we don’t actively police the site a lot of administrator time is taken up dealing with cases where potentially libelous or defamatory comments have been brought to our attention. Cases can be very complicated and involve a great deal of correspondence. mySociety is lucky to have the services of a specialist internet and technology barrister with expertise in libel who provides his services free of charge. We try and act in such a way as to maximise transparency while ensuring that the existence of WhatDoTheyKnow and mySociety are not threatened by legal risks.
In the last year there have been only seven significant cases where requests have been hidden from public view on the site due to concerns relating to potential libel and defamation. Three of those cases have involved groups of twenty or so requests made by the same one or two users. While actual number of requests we have had to hide is around 70 (0.4% of the total) even this small fraction overstates the situation due to the repetition of the same potentially libellous accusations and comments in different requests. In all cases we have kept as much information up on the site as possible. Our policy with respect to all requests to remove information from the site is that we only take down information in exceptional circumstances; generally only when the law requires us to do so.
Sometimes people accidentally post personal information to the site; for example they make a request which is not a Freedom of Information request but a subject access request under the Data Protection Act. We are happy to remove such requests. On occasion we get requests from both our users and public sector employees asking us to remove their names from the site. As we are trying to build up a FOI archive we are very reluctant to remove information from the site, our policy is only to remove names in exceptional circumstances. Often information, such as an out of office reply, which a public body or civil servant considers irrelevant and asks to be removed is in fact critical to the correspondence thread and timeline of a response.
Copyright and Control of Information Released
The fact information is subject to copyright and restrictions on re-use does not exempt it from disclosure under the Freedom of Information Act (though there is a closely related exemption relating to “commercial interest”). Occasionally public bodies will offer to reply to a request, but in order to deter wider dissemination of the material they will refuse to reply via WhatDoTheyKnow.com. Southampton University have released information in protected PDF documents and the House of Commons has refused to release information via WhatDoTheyKnow.com which it has said it would be prepared to send to an individual directly.
Mantaining and Expanding The List of Authorities
WhatDoTheyKnow lists around 3,000 public authorities, there is a regular turnover of changes in contact details. Our coverage, while large, is not comprehensive so we have requests to add bodies such as parish councils, schools, and doctors surgeries which we have not yet attempted to add in a systemic manner based on official sources of information.
We have also had to carefully consider what we do when for handling the various situations where an authority becomes defunct and its responsibilities are taken over by another body for example as a result of reorganisations of local government and the creation and merging of government departments.
Providing Advice and Assistance
The team at WhatDoTheyKnow.com often provide advice to users. We encourage users to keep their requests focused so as to reduce the chance of any problems due to libel or requests being classed vexatious. On occasion we suggest appropriate authorities for users to direct requests to, provide advice to those unhappy with the response to their request, and answer a broad range of other queries as they arise such as if particular bodies are subject to the act or not. Increasingly we link to authority’s publication schemes which are intended to let people know what information an authority has and how it can be accessed.
Lastly, like all websites which allow people to post content online WhatDoTheyKnow.com occasionally suffers from spam in various forms. Most is dealt with automatically but some has to be removed by hand. With spam, like the other aspects of running the site, the site’s code and processes are constantly being developed and improved to reduce the fraction of cases requiring any manual intervention.
This article was prompted in part by a team in New Zealand considering launching their own version on the site asking us what’s involved.
Statistics were recently released on the performance of UK central government departments with respect to their handling of freedom of information requests. The latest figures are for the second quarter of 2009. We have been able to use these to calculate the fraction of all requests which are made via mySociety’s freedom of information website WhatDoTheyKnow.com.
- 13.1% of all FOI requests to “Departments of State” in the second quarter of 2009 were made via WhatDoTheyKnow.com. In absolute terms this was 753 out of 5769 requests; this is up from 8.5% in the first quarter of 2009.
- 32.3% of FOI requests to the Home Office (which includes the UKBA and the IPS) were made via WhatDoTheyKnow in the second quarter of 2009. In absolute terms this was 206 out of 638 requests.
- The latest figures show that in twelve of the UK’s twenty-one Departments of State more than 10% of FOI requests were made via WhatDoTheyKnow.
What these statistics mean is that an ever increasing fraction of the information released in response to freedom of information requests is being archived and made publicly available by WhatDoTheyKnow.com. Hopefully this will reduce the number of duplicate requests being submitted and ensure the information released is made available to the widest possible audience which in-turn should increase the chances it is acted on.
Only forty-three central government bodies have their freedom of information performance monitored centrally. This is a tiny fraction of the three thousand or so bodies currently listed by WhatDoTheyKnow.