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
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.
Research Mailing List
Sign up to our mailing list to hear about future research.
WhatDoTheyKnow is kept up and running by a dedicated team of volunteers. Do you have the time or skills required to help? If you think you might like to lend a hand, read on to see what they do on a daily basis, as well as some examples of desired site improvements.
One of the volunteers’ many tasks is to maintain what we believe to be the largest existing database of public bodies in the UK (38,362 of them…and counting).
This requires quite a bit of time and effort to keep up to date: email addresses change; bodies merge, get new names or just cease to exist.
The turnover of the financial year always brings an extra slew of required changes; presumably many bodies like to use this date for a nice neat cut-off in their records. So, to give a snapshot of the sort of admin work the volunteers undertake, let’s take a look at every task April 1 brought the team this year.
Thirteen new authorities were added. Some of them are so new that they haven’t yet had any FOI requests made through the site. Perhaps you’ll be the first?
- The Hampshire and Isle of Wight Fire and Rescue Service was formed through the merger of two existing services.
- 39 NHS Clinical Commissioning Groups became defunct, and nine new bodies were added:
- NHS North West London Clinical Commissioning Group
- NHS Kirklees Clinical Commissioning Group
- NHS Coventry and Warwickshire Clinical Commissioning Group
- NHS Black Country and West Birmingham Clinical Commissioning Group
- NHS Shropshire, Telford and Wrekin Clinical Commissioning Group
- NHS North East London Clinical Commissioning Group
- NHS Frimley Clinical Commissioning Group
- NHS Hampshire, Southampton and Isle of Wight Clinical Commissioning Group
- NHS Bedfordshire, Luton and Milton Keynes Clinical Commissioning Group
- We also marked 2 NHS Trusts as defunct and added one successor: the University Hospitals Sussex NHS Foundation Trust.
- We’ve added the new UK Health Security Agency, which has been set up to work on public health threats, combining elements of Public Health England with NHS Test and Trace and the Joint Biosecurity Centre.
- All district, borough and county councils in Northamptonshire (eight in total) were abolished on 1 April to be replaced by two new unitary authorities:
When we add a new body that replaces an existing one, we also make sure that no-one can make requests to the now-defunct authority — while at the same time, requests made to it in the past, along with any responses, are still available to view, and requests in progress can still be followed up.
We also set up page redirects to the new body, and replicate all of the metadata that helps WhatDoTheyKnow’s system work behind the scenes. It might be a bit of a faff but it’s worth the effort to keep things running smoothly.
Many thanks to volunteer Martyn for completing the lion’s share of the work listed above.
How you can help
If you know of any other changes that haven’t been reflected on the site, please do let us know.
If this post has reminded you how much you enjoy admin, consider joining the team! We always need more volunteers to help us run the site, keep the database up to date, deal with requests to remove material, and support our users. Find out more here.
There are some specific tasks that are top of our wish-list, too:
- We’d love to do some intensive work on our list of parish level councils to make it comprehensive — this could mean a few people working systematically through a list, or several checking how well their local area is represented on WhatDoTheyKnow. Local democracy matters, more so than ever, and transparency is important for bringing happenings to light (as events in Handforth have recently reminded us!).
- We have ambitions to organise our bodies geographically, showing bodies which operate in particular areas, or showing maps of the areas covered by bodies. See this ticket for a discussion of some of the possibilities which we haven’t had the resource to completely finesse.
mySociety has experience in mapping UK governmental areas, but we’re yet to integrate that expertise into WhatDoTheyKnow — do you have the required coding skills to make it happen?
- We’d like to do more organising of the bodies by their function too, helping guide users to the appropriate body fo their request.
If you have skills in web-scraping, spreadsheet wrangling, database maintenance or other relevant areas and think you can help us — please let us know!
Subscribe to our newsletter.
Image: Anastasia Zhenina
People making FOI requests are sometimes accused of embarking on a ‘fishing expedition’ — looking for news stories without a clear idea of what they will dredge up — but a recent request on WhatDoTheyKnow asked for something very specific.
“Could you state”, it asked, “the number of passports issued to British fish since Brexit proper began on 1st Jan 2021?”.
This request was not as fishy as it might at first appear: it was based on a statement in Parliament. On 14 January, commenting on Brexit and its impact on the fishing industry, Leader of the House Jacob Rees-Mogg said:
“The key is that we have our fish back: they are now British fish, and they are better and happier fish for it.”
Ordinarily, we discourage what might be seen as frivolous use of FOI via our site, but as it happens this request was processed by the authority without complaint. They replied in a straightfaced manner:
“Her Majesty’s Passport Office does not hold the information which you have requested. Animal classification is not captured as part of the passport application process.”
While this might not have been exemplary use of our service, citizens have the right to make requests that clarify puzzling statements from our elected representatives, or to simply highlight that they are incomprehensible.
One of the team says, “It’s understandable that the public might ponder, ‘what did he really mean?’ It could be something of a floccinaucinihilipilification, but it might also relate to a ‘catch certificate’, or one of the many other new items of bureaucracy that have appeared in recent months.”
Another WhatDoTheyKnow team member added, “My reading of that response is that the Government aren’t sure that everyone with a British passport is actually human… and some proportion might well in fact be fish.”
We, however, think that’s something of a red herring, and we’d advise that anyone seriously wanting to surface information about piscine issues might have more luck sending a request to DEFRA, CEFAS, or the Animal and Plant Health Agency.
Subscribe to our newsletter.
Image: Fredrik Öhlander
One of the great joys of working on Alaveteli is that we also get to meet and collaborate with all kinds of organisations around the world who care about transparency, helping them set up their own Freedom of Information websites on our open source codebase.
One such project is MaDada, the French FOI site which launched in the autumn of 2019, helping citizens navigate the bureaucracy around submitting a request for information. The name is a pun: ‘dada’ being a kids’ word for horse — hence their equine logo.
Thanks to ongoing support from the Adessium fund, we’ve recently equipped MaDada with the ‘Pro’ add-on that allows journalists and other professional users of FOI to access specialised tools.
We took the opportunity to speak with Laurent Savaete and Eda Nano from the Ma Dada team, to learn more about how the site has been received by the French populace and what the hopes are for this new Pro functionality (or ‘Plus Plus‘ as they’re calling it over there).
FOI in France
But first, we wanted to know more about the background of FOI in France. The Alaveteli community consists of so many organisations pursuing the same types of aims, but always against different cultural backgrounds, and there’s always an opportunity to learn from one another’s experiences. Eda and Laurent filled us in:
“The French FOI law is one of the oldest around — it dates back as far as 1978. It’s often referred to as the CADA law, based on the ‘Commission d’Accès aux Documents Administratifs’ which is the official institution in charge of overseeing how administrations comply with it. One good thing is that in both 2016 and 2018 the law was reinforced to require all documents to be released as open data, in open standards and easy-to-use formats.
“But unfortunately the right to information is not so strong here in France. For example, CADA doesn’t have a power of mandate. When an administration fails to respond to a request, CADA’s decisions are no more than advisory opinions, though they can be crucial if you want to take the administration to court for lack of response.
“Not everyone’s able or ready to take administrations to court, though. I mean, it’s not that the process is difficult, but it’s far more complex than filing an FOI request via MaDada.
“Also, while anyone can ask for documents, and the service is always free, we can only request documents that already exist and ‘do not require too much work from the authority’. There is of course no clear definition of ‘too much work’, but it’s often used as a reason to reject a request, along with the exemptions around matters of defence and official secrets which are too easily brandished in response to requests.”
Wait, ‘of course’ there’s no definition — did we hear that correctly? Apparently so:
“The exact wording of the French law is that a request must only be fulfilled if it ‘does not require so much work that it could impede the officer or the administration from doing their main work’.”
We were astonished to hear this — here in the UK, we have the same exemption, but it comes complete with an upper cost, which can also be expressed as hours of work, which must be undertaken before the authority can refuse the request due to ‘exceeding the appropriate limit’. We’ve also got a bunch of other exemptions! But at least they are all clearly defined.
Plan for an Open Government
When it comes to other problems with FOI, there’s a story that’s familiar to many in the Alaveteli network:
“The key problem in France is the gap between the law, and how the law is actually applied or enforced. Incentives for public officers tend to push against transparency: nobody will get in trouble for ignoring a request for documents, but they could if they disclose documents which shouldn’t have been published. So erring on the side of safety means less transparency.
“More and more, journalists and activists have been pointing out the complete lack of FOI responses or the overrun in delays from administrations in providing a legally required response.”
“Transparency and open data are clearly becoming cool!”
On the other hand, something’s in the air: “What we’ve seen in recent years and especially months, is that after the mid 2020 elections, municipalities started appointing deputies on transparency matters. For example in Marseilles, we now have a Representative for Transparency and Open Data for the town.
“France signed up for the Open Government Partnership initiative in 2014, but its first action plan in 2018-20? Frankly the results were not spectacular at all: it was more words than action.
“Last month, the Government launched a second two-year ‘Plan for an Open Government’: this one’s set to run until 2023. They said it will be better, with more money to serve it, more concrete actions, more collaborations with citizens. And they’ve asked MaDada to give feedback and tell them what we’d like to see realised in the next few years.
“So transparency and open data are clearly becoming cool. But at the moment it’s too young to be judged. The words are there and we need to see concrete actions. Let’s hope that things really will change drastically towards openness and transparency and that that we do not only have words to rely on.”
That’s all very interesting and helps us understand the background details. Now, into this mix a new FOI site for the general public appeared 18 months ago. So how has MaDada been received?
“When we launched in October 2019, the French FOI law was quite an unknown topic for the public at large, and the need for transparency and open data were still, somehow, something only discussed internally.
“In our first year of existence we had something like 200 requests (see MaDada’s blog posts about their first year online – in French).
“We are now at 800 public requests. So numbers picked up pace: something’s happened recently.
“It’s not just that the platform recently improved — with better user support and the addition of the Pro feature: we can also see that the topics of open data and transparency are becoming more and more popular. Several activists and organisations have been campaigning around these matters, sometimes via MaDada. The public is more and more aware of our existence and of their ability as citizens to actively participate.
“We list 50,509 public authorities (I think France has the world record here). A lot of our support time is used up trying to keep the email addresses for these authorities up to date. And that’s tricky: there’s not much proactive updating from the authorities themselves, we’re constantly having to ask them for new addresses. We hope that the Project for an Open Government will make this easier for us.
“As of today we’ve reached 955 requests, of which 794 are public — the rest are still embargoed. Out of those, just 126 have been successful so far. That’s very low: many authorities in France just ignore the law, and sit on incoming requests until the one month time limit to reply is over. We’re at around a 15% success rate, which is probably not too bad in the average French context. We’re obviously hoping to work to improve this!
“We’ve just seen an incredible growth in the number of users and requests in the past five months: more or less an exponential growth, which is pretty exciting! We hope this trend continues.”
And as for the addition of Pro, allowing for the MaDada++ service? We were interested to hear the organisation’s experiences and hopes around this add-on.
“The public is more and more aware of our existence and of their ability as citizens to actively participate.”
“The Madada++ feature is working so well: it’s been attracting journalists mostly, as well as data scientists and activists. The biggest appeal is the batch requests, and also the temporarily embargoed requests, allowing them to keep their news stories exclusive, or giving them time to analyse data before publishing.
“We’re happy to see that despite this ability, they still follow our advice to publish data as soon as they can.
“Since the MaDada++ feature went live, we’ve clearly seen more in-depth analysis and journals publishing reports on data obtained through it. We hope to see more coming in the next months.”
What’s France asking for?
Finally, we were curious about the type of information that’s been released on MaDada. Anything of interest here?
“Well, recently, as you might expect, there have been a lot of requests related to COVID-19: data around the analysis of COVID in sewage water; about the circulation of COVID variants in France; metrics showing the usage of our national COVID app.
“Let us also mention the publication of a report on poverty and conditions in accessing minimum social aid in France by the Secours Catholique and Aequitaz organisations: this report used responses to batch requests made via MaDada++.
“And another journalist, who uses MaDada extensively, just published a report on the fees of deputies, pointing out the lack of and need for transparency — that the French law already requires!
“Also, we’re very proud to begin our collaboration with La Quadrature Du Net, the French organisation defending digital fundamental liberties, who are intensively using MaDada for their legal analysis and for their Technopolice campaign that reveals the encroaching police surveillance powers.”
And on that last note, there’s the proof of the assertion we made at the top of this post: that the international community of Alaveteli users have so much in common. Privacy International have been looking into exactly this same issue, as we covered in a blog post.
We want to thank MaDada so much for sharing their experiences in deploying and running the Alaveteli codebase and offering the people of France an easier route to accessing information. While we’re all unable to travel, we can still have these useful and interesting discussions. May their project go from strength to strength.
Subscribe to our newsletter.
Along with several other transparency organisations, we’ve cosigned a letter from Open Government Network, adding our voice to the message of concern at the UK government’s failure to meet its own targets as laid out in the National Action Plan for Open Government — and calling for it to get back on track before the next Action Plan is released in September.
The UK was one of the founding members of the Open Government Partnership, an international coalition launched in 2011 with a commitment for participating governments to work with civil society groups and the public towards ‘ambitious and radical’ improvements in transparency, accountability and democracy. Yet the organisation has now placed the UK under review for poor outcomes in open government.
The National Action Plans (NAPs) are the mechanism by which targets are set — supposedly in consultation with participating NGOs — on a cyclical basis; these are then assessed independently through mid- and end-term reports.
Clearly the aims and vision underpinning the OGP are very much in line with mySociety’s own missions and values, and we were commissioned last year to author the end-term design report to check how effective, and inclusive, the 2019-2021 NAP has been.
It was this report which brought to light just where, and to what degree, the government has fallen short of the required standards for public involvement, failing to liaise and take on board recommendations from civil society — and which has led to the OGP adding the UK to its watch list, putting us alongside eight other countries including Greece, Israel and Malawi.
Consultation and co-design of the UK Action Plan with civil society, a prerequisite of the mechanism, has been lacking: for example well-evidenced suggestions for improvements to Freedom of Information have been unacknowledged and unadopted. As the government heads towards the next Action Plan, due for September, there are no signs of improved engagement.
The letter asks the UK government to commit to four points to put it back on track as a leading partner in the network, including a review of previous unmet commitments to see why they were not met and whether they can be included in the new NAP. The letter also appeals for a timely publication of the next NAP, before which urgent meetings with civil society stakeholders need to be held, and the actions that arise from them implemented.
The current NAP expires in September 2021, and we, along with our civil society colleagues, implore the UK government to commit to speedy and meaningful engagement on developing high quality and effective open governance. This is especially vital for civil society and the public as a whole to be sufficiently informed to hold our government to account, now more than ever, as we recover from the COVID-19 pandemic, and development as an isolated trading entity outside of the EU.
Image: Timo Wielink
Here are a few stories that were in the news recently. They have two things in common — see if you can you guess what they are:
- Money laundering fears as universities accept £52m in cash (Times)
- Almost 1,000 UK homeless deaths recorded in 2020 (ITV)
- Covid bike and walking schemes do not delay ambulances, trusts say (Guardian)
- Councils fail to pay £1.3bn of emergency Covid business grants (Times)
- Covid-19: NHS trusts deny restricting PPE during pandemic (BMJ)
- Half of London boroughs found using Chinese surveillance tech linked to Uighur abuses (Japan Times)
If you’ve been keeping up with mySociety’s posts, it’s probably no surprise that the first thing these stories have in common is that they are all based on Freedom of Information requests — in fact, multiple requests made across many bodies.
We often mention how useful Freedom of Information can be in helping campaigns, journalists or individuals to gather information from a variety of sources, to create a dataset that didn’t exist in one place before.
Naturally we are all in favour of such stories — but we think the organisations and media behind these requests are missing an extra trick, and that’s the second thing they have in common.
In every case, it seems the journalist or organisation has submitted their requests, and gathered the data, then written the story — and that’s the end of it. That data is hidden away, and no-one else can access it to verify the story, dig further or to find more interesting leads.
Journalists understandably gather information for their stories in private so that they aren’t ‘scooped’: this is one factor that led us to develop WhatDoTheyKnow Pro, which allows users to embargo requests and responses until their story has been published. But, once it has, the tool features strong encouragements to put the underlying data live, so that everyone can access it.
After all, at this stage there is often little benefit to the journalist from keeping the data all to themselves — and lots of potential public good from putting it out in the open. This is also a great way of providing extra credibility for a news item, showing that the facts back it up.
Here are those stories again, together with details of the requests that informed them:
- University money laundering fears: The Times surveyed multiple British universities to break this front-page story.
- Homeless deaths: The Museum of Homelessness put in over 300 FOI requests to gain one part of the information backing up their Dying Homeless project.
- Bike and walking schemes not delaying ambulances The charity Cycling UK asked 10 ambulance trusts for their data.
- Councils fail to pay grants 400 FOI requests were issued by the Event Supplier and Services Association to local authorities across England.
- NHS trusts deny restricting PPE: The BMJ sent Freedom of Information requests to 130 acute, community, integrated, and ambulance trusts.
- London boroughs using Chinese surveillance tech FOI requests were submitted to all 32 London councils and the next 20 largest UK city councils.
If you’re a journalist or campaigner yourself, we’d like to suggest that you consider making your data public next time you use FOI like this. Do it via WhatDoTheyKnow Pro, or, if you prefer, do it elsewhere: naturally, the choice is yours, though it’s worth noting that data on WhatDoTheyKnow is easy for people to find, thanks to our excellent search engine positions.
Pro also has other features that aid journalists in their investigations, including the ability to send batch requests to multiple authorities.
With our citations tool, you can even link directly to your story, giving it a boost in visibility that is also accelerated by our good standing with Google et al (or other users can link to it in an annotation).
On the other hand, if you’re just an interested citizen who would love to know more about one or more of those news stories, don’t forget that you could use WhatDoTheyKnow to request the same information, and it will then be public for all to see.
For example, if the homelessness or the PPE story is of interest to you, you could make an FOI request to your own council or NHS Trust to get the local picture. Once you have the facts, you might take informed action on them: perhaps lobbying your local representatives for change, or contacting the local media if there’s a story to be told.
And, to help us in our attempts to get more journalists thinking about opening up their data, you could keep your eyes open for stories like these in the future.
If you see one, perhaps give the writer a friendly nudge to publish their data. After all, they’re using transparency to get their scoop — why not also practice transparency for the good of all?
Artificial Intelligence, innovative use of data and the arms industry – now there’s a bunch of areas you’d want oversight on. And yet, a high-profile new government research agency appears to have been absolved from the obligations of public scrutiny before it even begins work.
News broke this week that the treasury has authorised £800 million of funding over the next four years for the Advanced Research and Invention Agency (ARIA). This research agency was originally conceived by Dominic Cummings, and, according to the 2019 Conservative manifesto, will be producing “high-risk, high-payoff research, at arm’s length from government”.
More explicitly, The Guardian sees the agency very much working in the area of defence, while also noting that many technologies developed in this area have gone on to benefit society more widely. The BBC says ARIA has been inspired by US agency DARPA, which is “credited with funding the development of the internet and GPS”.
All well and good, perhaps, until you see the government’s assertion that “the new body is being set up so it can take fast, agile decisions without bureaucracy.”
Judging by multiple press reports and a comment from Ed Milliband, although the agency is to be funded by taxpayers’ money it will be exempt from Freedom of Information law. While we very much hope this is not the case, this aspect has been reported by several sources.
FOI is explicitly for the purpose of allowing citizens to demand transparency from the institutions which we fund. The Times, reporting this story, also takes a moment to remind readers that it, along with other major news outlets — not to mention organisations including mySociety — is calling for urgent action on declining levels of governmental transparency, and we can see from the ICO’s many notices to Whitehall departments that the current administration are not complying with their obligations.
Our friends at the Campaign for FOI point out that DARPA, the blueprint for ARIA, is in fact subject to the US FOI Act, so removing those obligations would be something that has been built in as part of ARIA’s conception:
This new taxpayer funded body must not be exempt from #FOI. The Act has an exemption to protect commercial interests. The US agency, DARPA, on which it is modelled is subject to FOIA. So ministers have no basis for claiming FOI would give rivals an unfair competitive advantage. https://t.co/Ch4Spnp91S
— Campaign for Freedom of Information (@CampaignFoI) February 17, 2021
Additionally, the WhatDoTheyKnow team point out that any authority wholly owned by the public sector is subject to FOI unless specific provision is made to exclude it — and so, dodging the obligations of the Act would require either setting up an opaque operating structure for that purpose, or a new exemption to be passed into law under the FoIA.
Meanwhile, our FOI site WhatDoTheyKnow does list authorities that are not subject to FOI if there is a good argument that they should be. If indeed it is officially exempted from the Act, we will also take this route with ARIA, just as soon as it formally comes into being.
EDIT: The official government press release is now here, and includes the statement: “Central to the agency will be its ability to deliver funding to the UK’s most pioneering researchers flexibly and at speed, in a way that best supports their work and avoids unnecessary bureaucracy.”
Image: Kevin Ku