We’re seeing increasing instances of misleading information in authorities’ auto-responses, or standardised replies, to Freedom of Information requests.
Automated responses can be useful: they are an additional assurance, on top of our green tick, that your request has been received by the authority. Used well, they might point the request-maker towards commonly-requested information, for example, or give some indication of current service levels.
But some authorities are including statements within their canned text that could cause concern or confusion for people making requests. Let’s take a look at four of the most common examples.
“Please use the form on our own website”
“The process to submit Freedom of Information Act requests has changed to an online request form via Reading Borough Council’s website. This email address will no longer be used to log and respond to FOI requests from the 1st March. Please re-submit your request via the website. […] If you do not process the request via the website, your request will not be actioned.”
And this response from Bury Council states:
“In reply to your email regarding Freedom of Information, if the information you require cannot be found/or is not publicised on the Council’s website you will need to make a formal FOI request which can be done by using the online form at www.bury.gov.uk/foi
Please use this form so that we have all the relevant information in order to reply to your request, we will also acknowledge your request following completion of this form.”
- are in writing
- state the name of the applicant
- provide a means of correspondence
- describe the information sought .
Requests should be accepted whether made by letter, email, or even Twitter, and the authority has no right to oblige you to use their preferred channel — and, as it happens, ICO guidance explicitly recognises WhatDoTheyKnow as a valid means of requesting information under FOI.
Some authorities reference their web form in their auto-response, but then go on to respond to the request anyway — better than not responding, but not ideal, either.
In either case, we’d suggest following up by responding to the authority, citing our help page for FOI officers, and asking for an acknowledgement that they’ll process your request as they are obliged to by law.
“We require confirmation of your identity”
In this auto-response, Leeds City Council says:
“Please note in order to process your request, we require confirmation of your identity via a copy of one of the following forms:
– Driving Licence
– Birth Certificate
– Council Tax bill
– Utility bill”
Leeds aren’t the only body to automatically mention a ‘requirement’ for confirming the identity of the request-maker in their responses. But in fact, ID is rarely called in, and as you can see in this example, the authority went on to process the request once the citizen had provided their full name.
Even that may have been unnecessary, as our FAQs say:
“Technically, you must use your real name for your request to be a valid Freedom of Information request in law. See this guidance from the Information Commissioner (October 2007). However, the same guidance also says it is good practice for the public authority to still consider a request made using an obvious pseudonym.”
Read the FAQs further to find out more about using a pseudonym to make FOI requests.
“We may charge a fee for the information requested”
Auto-responses like this one from King’s College Hospital NHS Foundation Trust very commonly include a clause saying that they have the right under the Act to charge for the provision of information:
“As a public authority, the Trust may charge a fee for the information requested. Any fees are calculated in accordance with the regulations issued under the Act. If your request generates a fee payment, I will inform you at the earliest opportunity and provide an estimation of costs.”
As we explain in our FAQs, making an FOI request is almost always free, and all the more likely to be so when conducted digitally:
“Authorities often include standardised text in their acknowledgement messages saying they “may” charge a fee, which, understandably, can be a little frightening. Ignore such notices. They hardly ever will actually charge a fee.
“Most of the activities that authorities can charge for, such as photocopying, and postage, don’t usually apply to requests made via WhatDoTheyKnow, which are all conducted via email. Additionally, a public body can only charge you if you have specifically agreed in advance to pay. See more details from the Information Commissioner.”
“We may charge for re-use”
We’ve recently had a couple of users getting in touch about responses stating either that information provided should not be reused because it is copyright, or that there may be a fee for reuse.
For example, this response from Cleveland Fire Brigade states:
“Please note that information supplied in response to the Freedom of Information Act requests provide data for inspection by the enquirer, but does not give automatic right to reuse the information contained in this response which is subject to copyright and is not licensed for reuse including marketing.”
More nuanced responses sometimes point out the difference between use for commercial purposes (disallowed) and use for academic research or journalism (permitted): in this example from Corby Borough Council there is also mention of a fee for such usage:
“Please note that although this information has been released to you, this does not automatically give you the right to reuse the information. Reuse is defined as ‘the use by a person (or company) of information held by the Council for a purpose other than the initial purpose for which it was produced’. With the exception of non commercial research and private study, any other reuse of information (including the posting of material on a website or distributing printed copies at a meeting) may require a license from the Council, which will be subject to a fee. For more information, or to apply for a ‘Reuse of Public Sector Information’ license you can visit […]”
Our stance on the reuse of information can be seen in our FAQs:
“Authorities often add legal boilerplate citing the “Re-Use of Public Sector Information Regulations 2005”, which at first glance implies you may not be able do anything with the information. They also sometimes put copyright notices on material.
“Careful scrutiny of the legislation, however, shows that you are at liberty to write articles about the information, summarise it, or quote parts of it. It’s WhatDoTheyKnow’s belief that you should feel free to republish the information in full, just as we do, even though in theory you might not be allowed to do so: our policy on copyright explains why.
“If the information you have received is Crown Copyright then you are able to reproduce it under the Open Government Licence but there are some conditions — check that link for more details.”
Plus, since anyone in the world can request the same information, we consider trying to restrict it in this way to be misguided.
So there we are: we hope that this blog post will go some way towards reassuring you if you receive responses like these. And, if you work at an authority, maybe it will encourage you to re-examine your automated messaging so that it is both accurate and helpful for those requesting information.
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Thanks to everyone who attended the launch of our Research department’s policy paper this week.
Open Democracy’s Peter Geoghegan and Open Rights Group’s Jim Killock joined us at the event for a fast paced discussion of the problems with FOI we’re all seeing in the current climate, and to what extent the proposals in our paper would remedy them.
At times, the chat box was so lively and knowledgeable that it felt like we’d convened the entire UK FOI community, but we know that isn’t quite true, so here’s the video for those that couldn’t make it:
We’ve also answered the most relevant of the questions that were posed by our attendees, and you can see the responses here. Thanks, too, to Open Democracy for reviewing the paper in this thoughtful piece.
Alex Parsons, who led on the research, has a handful of side explorations that didn’t end up in the final paper:
- Network Rail: how accounting definitions of control can expand FOI/EIR coverage
- FOI and appeals to the regulator
- What are environmental information requests and how do they differ in Scotland?
And finally, if all this talk of FOI has awakened your desire to do more around the topic, well, we have just the job opportunity for you.
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”. 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.
- 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.
OSIC ICO OSIC (time taken in days) ICO
(time taken in days)
For applicant 39% 28% 97.27 125.73 For authority 34% 53% 144.40 119.86 Partially upheld 27% 19% 198.60 141.28
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.
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 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.
: 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
At the launch event for our new research report into reforming FOI in the UK, we said we would follow up questions after the event. This blog post answers questions that go beyond what we covered in the presentation. The report can be read online or downloaded as a pdf.
Is there any reason why the present Westminster govt would want to make any of the proposed changes? Is there any leverage?
One of the problems with improving transparency is that groups with the most interest in not expanding information rights tend to be those with the power to stop such improvements from happening. Given this, it is an interesting question why FOI laws ever happen in the first place. Dan Berliner tried to answer this question and found that change was most likely in “competitive political environments”, where frequent turnover in office means the benefits of transparency while out of office outweighed the costs while in office. In this framework, transparency comes from commitments made from parties while they were outside government (as was the case in the UK), or by governments who want an insurance policy if they should lose power. This is logical, but does not offer good immediate prospects or next steps.
Our current thinking is to approach this dynamic from a ‘parliament/executive’ angle and to argue that an effective FOI system should be seen as a component of broader anti-corruption work.
We position Parliament as the natural environment of an Information Commissioner because the role of the two institutions in facilitating public scrutiny of the executive can pull together.
While the original white paper cited above did not see a lot of distinction in 1997 between government and parliamentary power (for good reason), more recent experience shows that in the right circumstances Parliament can be a real independent force. Almost half of the period from when the Act came into force in 2005 until 2020 saw periods of minority or coalition control. Our argument that moving oversight of the ICO from the government to Parliament is in this context. Alongside this there’s more to be made of how parliamentarians themselves make use of FOI as a tool, and articulating how MPs/Lords can collectively work to protect and improve the usefulness of that tool.
We also think there is work to be done in making FOI less abstract and connecting a strong FOI system to accepted problems that it can be part of the solution to. For instance, Tortoise’s Chris Cook makes the argument that lobbying reform by tracking lobbyists raises a lot of complicated issues, and it is easier and more effective to have a stronger Freedom of Information process (“rather than trying to make a list of an ever-larger range of suspicious people in the private sector, just make sure that interactions with public authorities are accessible”). Given this, we’re keeping an eye out for opportunities to feed into lobbying and other future anti-corruption inquiries.
To answer another question asked, there is not an APPG on FOI, but possibly on this logic we don’t want one. What we do want is for members of APPGs in related areas (Anti-Corruption and Responsible Tax, Democracy and the Constitution, Legal and Constitutional Affairs, etc) to see FOI as something that is relevant to issues they care about. Improving FOI is a long game, and for the moment our approach is trying to expand the number of groups that see it as useful for them to protect and improve.
In separating out the two functions of the ICO is there a danger that the Data Protection side will ignore FOI considerations whereas at present the Information Commissioner needs to keep both in mind?
This is one of the reasonable questions to ask about our proposal. Indeed, to have everyone working from the same definition was part of the original justification for joining the roles.
I don’t think we can have an easy “that’s not something to worry about” answer, but the argument we make in the report is that the international standardisation of data protection (and that potential future commissioners are likely to be more familiar with this international system than domestic FOI laws) reduces the extent to which the ‘balance’ of data protection versus disclosure is one resolved by having the two roles in one person. As what data protection means is increasingly defined in standard terms, there is less room for differences in interpretation and so including FOI responsibilities has less of an influence on data protection considerations. This is an area where there’s a lot of space in the middle, but our position is that the original arguments about conflicting definitions of personal information are now resolved through a more widespread standard.
Would it be a good idea to give a better Appeals process from where the ICO refuses things, rather than having to go through an MP to get to the Parliamentary Ombudsman or face a costly Court case?
Don’t have developed thoughts on this one, but we are currently doing a research project investigating how appeals processes work for FOI across Europe, and it is making us appreciate a bit more the benefits of free appeals through the Commissioner in the UK compared to countries where the first remedy is through the courts. Not to say it can’t be improved, but having a free external appeal through the Commissioner (and that decision is then appealable, if not for free) is not bad as things go.
Are you in favour of changing the FOI act to allow for FOI lawsuits, like with the US version? What about removing the exemptions for the intelligence agencies? Again, under the US law there are national security exemptions but the agencies themselves are not automatically exempt.
For context, in the US requesters can sue for access to information when the response is not received within the statutory deadline.
For us, the first step is understanding more through statistics about how often the statutory deadline is not met, and in improving the logic of the appeal process through treating lack of response as a refusal. Ideally the FOI system should work without the frequent use of the legal system, and giving up on that is putting FOI beyond the reach of the normal citizen. In the US use of lawsuits seems common enough that they’re a solution for requesters who can pay, but not a good fix to the underlying issue of slow response times.
You also have to be careful how you construct legal processes and incentives. In the Netherlands, the law was constructed for a time so late fines were payable to the requester, creating a perverse incentive to overload authorities with requests.
Not really an answer to the question, but a good time to point out that DARPA (the US organisation that ARIA is based on and that is planned not to be subject to FOI) is subject to FOI.
The reports recommendations would be great, but I was wondering what we as individual requesters can do day to day?
Don’t have a full answer to this and we’re going to do more thinking about how the big picture and day to day come together. In general we think making requests in the open through WhatDoTheyKnow is a good, slow and steady way of demonstrating the value of the legislation by making the results open and accessible, and sharing knowledge about how the FOI process works. (If anyone has the interest, some ways of helping WhatDoTheyKnow more specifically are on the website).
What risk do the speakers think the possible changes to judicial reviews may make? That is a concern in itself, but would it also limit those FOI requests where the government claims exemption on various grounds?
The short answer is ‘probably not a big risk’, but getting to this answer required some thinking (and honestly some more research). The aspect of Freedom of Information that would be most relevant to the areas currently under discussion is the use of the ministerial veto. A Judicial review of the use of the ministerial veto certificate – R (Evans) v Attorney General – implied qualifications on the circumstances the veto could be used, and led to the release of the Prince Charles Letters.
For a brief background on current discussions, the 2019 Conservative Party manifesto said that “[w]e will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” The government then commissioned an Independent Review of Administrative Law which reported in early 2021. Generally this concluded that judicial review was functioning well, while recommending some procedural changes. The government is currently consulting on some details of that, but also on areas where the commission did not make strong recommendations.
From an FOI perspective, it is not wrong to pay attention to this review as the Evans case was highlighted. The review specified the Evans case as an example of where “at the least, an argument might have been made that the exercise of that power was non-justiciable or that the power could only be reviewed on the narrowest of grounds”. The review recommended that courts be given the option of making a “suspended quashing order” – which would come into effect if conditions are not met. The review suggest this approach “might have been useful in the Evans case in allaying governmental concerns created by some of the judgments in that case that no form of legislative words would ever have been accepted as authorising, in a sufficiently clear manner, an Attorney General to ‘overrule a decision of the judiciary because he does not agree with that decision’”. In other words, if the court held that the certificate was not legal, but it was technically possible to produce one in some conditions, time could be given to attempt this. This could make judicial review less useful to pursue, as questioning an invalid decision is less likely to yield a complete reversal.
The review generally favoured giving courts more procedural devices for gentler reconciliations of government and judicial power. The subsequent government consultation is also interested in action on the other end: what can Parliament do to increase the autonomy of the government? One area of interest in the consultation is ouster clauses, where a clause in legislation is used to prevent judicial review of particular acts of the executive. For the purposes of FOI this is potentially a concern as a method of removing judicial review from the use of vetoes, but before this becomes a serious concern it is worth noting (as the Review did) that a previous and more straightforward opportunity to clarify this law was not taken.
The earlier 2016 Independent Review of Freedom of Information had recommended amendments to reassert and clarify the ministerial veto’s scope (“where the executive takes a different view of the public interest in disclosure”) and this was not taken up by the government. This was possibly on the grounds that while solidifying the general right, it also marginally reduces the potential scope of the exemption and most of the problems of potential judicial review were resolvable without doing this. The main objection of the court was that the certificate had insufficient substance to override a court decision and so most of the legal obstacles can be avoided by issuing a certificate before the appeal stage. The government committed to doing this in future. To get back to the original point, if the government is interested in creating tools that reduce the scope of judicial review, these are potentially applicable to FOI but would require legislation to make use of, and if you’re doing that it is probably more robust just to expand the ministerial veto directly.
Another proposed change that could potentially impact FOI is removing the ability to appeal a refusal of a permission to appeal a first tier tribunal decision where the issue is on a matter of law in both cases. Our understanding is that this has not been used in information rights cases (almost all ‘Cart’ appeals are around immigration cases, and those that do not seem to relate to the Ministry of Justice in other respects). A few information rights decisions refer to the potential ability to appeal through this route but indicate a high bar. If anyone knows differently, let us know, but this does not seem likely to lead to a practical change in Information Rights appeals.
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“WasteWorks provides councils with the opportunity to bring about real improvements to the way citizens access waste services online.” – David Eaton, SocietyWorks
The end-to-end process of managing waste online is now easier and more efficient for everyone. Automated updates and templated responses make it easier for councils to manage expectations and deliver a more transparent service, while internal dashboards and visual heat maps enable staff to track service levels and identify trends.
Find out more on the SocietyWorks website and if you’re from an authority, you can click here to request a demo. Meanwhile, if you’re a resident who’s fed up with your council’s less than intuitive online waste systems, why not drop them a line to let them know about WasteWorks?
Image: Shane Rounce on Unsplash
We’re looking for a Delivery Manager to join our new Climate programme.
Last year, we added Climate to mySociety’s existing programmes of Transparency, Democracy and Community — you can read more about our activity in this area here.
We dived in to the programme with work to support the UK’s national Climate Assembly; close on the heels of that has come our project to collect and share the Climate Action Plans of every local council across the country, a service that we’ve now launched at data.climateemergency.uk.
The Climate Action Plans site allows citizens to see what their own council is doing around carbon reduction, and simply by making the plans public and searchable, all in one place, it opens up a multitude of opportunities for councils to learn from one another.
The service is in its early stages. We already have feedback from early users that it’s useful in its current form — but there’s lots more we want to do with it, and it stands as a good signifier of the plans we have for our Climate programme over the next few years.
Now we want to expand on this use of data, and increase our outreach to key stakeholders such as climate action groups, councils, journalists and researchers to help accelerate and improve action on climate at the local level, where it is estimated that 30% of the progress towards net zero can be made.
Thanks to funding from Quadrature Climate Foundation, we’re now in the process of scoping this work and scaling up our team: if you’re interested in being part of what looks like it’s going to be some of the most rewarding and crucial work mySociety has been involved in to date, do check out our current job vacancy for a Delivery Manager.
We’ll also be looking for a Network and Outreach Coordinator soon, so sign up for our Jobs mailout right at the foot of this page if you’d like to know when that vacancy goes live.
Image: Vadim Kaipov
Are you investigating, researching or gathering large quantities of data through Freedom of Information requests? Perhaps you’re a journalist, academic or NGO. We’re looking people based in the UK who’d like to try out our new ‘Projects’ feature for WhatDoTheyKnow Pro.
Projects allows you to crowdsource the extraction of data from multiple (or batch) FOI requests made to multiple authorities. You can set up a project with a brief description of what it is and what you are hoping to achieve, and some tasks that volunteers can complete to help you with this aim (like categorising responses, or answering questions about the data released).
Once that’s done, you can set it up to invite volunteers, who can help you to extract all the information you need from the released responses.
You’ll be able to download your volunteers’ input as a spreadsheet, meaning analysis of the data is much quicker and easier — so you can get on with the task of forming conclusions and writing up your findings.
What we’ll need from you
Projects is still in its nascent stage, so we need feedback from our testers. This will help us improve the service and tailor it to users’ needs, based on real life use cases.
Right now, we handle the setup and importing of the requests you want to work on manually (that is, our developers have to do it) — but we’re working on improving this aspect, and your feedback will be crucial in shaping the direction our development takes. We’re also looking for general comments, once you’ve used the service, on what’s useful and what’s missing; what you tried to do but couldn’t, and what made things easier for you.
If this sounds interesting, please get in touch at email@example.com. We look forward to hearing from you!
Image: Jessica Lee
The right to access official information is fundamental in a healthy and vibrant democracy. Freedom of Information (FOI) legislation is a vital tool in research, journalism, and in supporting citizens and groups to hold their public institutions to account. In the UK, the Freedom of Information Act has now been in operation for over 15 years. Campaigns against adding new restrictions to Freedom of Information are generally successful and reflect the fact that FOI has become part of the constitutional settlement — but at the same time positive changes are resisted.
The Freedom of Information Act is static while the ways in which public services are delivered are changing. The regulator’s FOI work is underfunded and as such there is more focus on the data protection duties within the regulator’s portfolio. The picture of change that comes out of central government statistics is not encouraging, and there is not the data available to understand if this is a broader trend. Freedom of Information is unlikely to be abolished, but there is a danger of it sliding into obsolescence. Over time new classes of public body may never be covered by the Act, more public services are likely to be delivered by private sector organisations, and the legal rights that exist are less able to be enforced by an under-resourced regulator.
Devolution has led to a diversity of approaches where different parts of the Union can learn from useful decisions made in others. In our new paper, we take advantage of the existing (and potential for future) devolution of Freedom of Information legislation to suggest changes that learn from good examples in different systems. This has led to four sets of recommendations, based on transferring practice from one UK-based system to another:
Improving statistical knowledge of how FOI works in the UK – The Office of the Scottish Information Commissioner has built a comprehensive and invaluable picture of the functioning of FOI in Scotland by collecting statistics on how requests were received and processed by authorities. In the UK, this coverage is limited to central government and a rarely followed requirement that larger authorities publish their own statistics. The majority of FOI requests made to public authorities in the UK are not covered by public statistics, making the regulator (and the interested public) blind to trends over time, and less able to understand whether FOI is functioning well or not. We recommend the Information Commissioner’s Office (ICO) act as the host of a central repository.
Separating the Information and Data Protection components of the Information Commissioner – The UK’s Information Commissioner has two major roles: data protection and access to information. The first of these roles has always been larger, but its scope and importance has only increased over time. Separating the access to information function and transferring oversight and funding from a government department to Parliament would help solidify the role’s independence and set it up to deal with both current and future challenges.
Improving the operation of FOI and EIR across the UK – Taking examples of different approaches in the UK and Scotland, we recommend both regimes should adopt best practice from the other. This includes differences in philosophy around the strength of exemptions and extension to private operators, but also different practical approaches such as clearer rules on time scales, administrative silence, and harmonising rules on fees for FOI and EIR.
Exploring new paths for Welsh Freedom of Information – Currently the Welsh Parliament/Senedd has the ability to diverge in a similar respect to Scotland and set up a different system that applies to Welsh public authorities. We explore the implications of this and recommend a mini-divergence, where the Senedd legislates to give the Welsh Government the ability to add private organisations executing a Welsh public function to coverage of the Act.
You can find more information in the full report.
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