These are notes from a recent ‘fireside chat’ held by the ATI Network. For the sake of frank conversation and knowledge exchange, the session was not recorded, but you can read on for the main points.

Laurent and Xavier from the French Alaveteli site MaDada were talking about their learning process from working with Access Info on legal reform of FOI laws in France, as detailed in this post. This is part of the ATI Network project we’re working on across Europe to strengthen ties and skills between European Access to Information platforms.

The work began almost three years ago, when Rachel Hanna, Director of Access Info, and Helen Darbishire, the former Director, mapped all the FOI laws across Europe and organised them with high level recommendations and categorisation against an “ideal” law. From there, Access Info identified four different countries to work in depth with over the lifetime of the project to try and influence changes to laws or steps forward in campaigning.

France, with MaDada as its subject, was one of the countries identified, and there were a number of reasons for this which Laurent explained when we met: “The French context is difficult. The law is old, they tried to do some updating between 2016- 2018 with the internet in mind, but other than that it’s not changed since 1978.” However, one thing that has gained consensus from all politicians and lawmakers is that there is “constitutional value” to FOI in France, which is positive.

Laurent explained how Access Info dissected the law and broke it down into really distinct parts, separating which worked and which didn’t: “It was an interesting thing to see it dissected from the outside and get that perspective.”

They already knew that the law wasn’t a strong one, but viewing it through the eyes of people who work on improving these things really brought home how much work there is to do. For example, France did not sign the Tromso convention, despite being one of the key negotiators of the convention!

The law itself was revealed to be quite partial — there are a large amount of exclusions which are absolute, and no balance of interest is considered for release of information (like the public interest tests we have in the UK, etc). This is backwards compared to most of Europe. They do have an oversight body called the CADA, but apparently that body is weak both in resource and power.

Then, when it comes to implementation, this is even weaker than the law itself. And to compound this, barely anyone knows about the existence of the law either.

So, looking at Access Info’s three tenets of advocacy, lobbying and activism, MaDada set about defining what would be possible for them to work on.

Quickly, they realised that lobbying would be challenging. Right now France is in some political turmoil due to the dissolution of the parliament and subsequent failure of governments — they’re expecting another vote later this year, and this instability really puts a blocker in the way of discussing legal reform with politicians and getting legal change pushed through.

For the activism side of things, you need the movement behind you, and if not many people are aware of the law it’s hard to get together to campaign for this.

So advocacy was the route MaDada chose: promoting the law and increasing access. They had a slight chicken and egg issue with it. They desperately needed to find allies, but to find them, they needed to talk about FOI, and sell the law, which is tough when the implementation is so broken. They started down the training route and completed training with journalists which was positive, but also brought the realisation that this is a long-term endeavour.

They also tried publishing a report — which was met with silence. It’s disappointing but for the team it also felt expected, so they’re looking at the easy low hanging fruit for their next steps.

They came into this process with quite high expectations. They wanted to change something, propose new legislation or make a visible immediate difference, but actually going through the process they have realised that this is a long journey and they’ve taken the first step in a series of continuous action. Now their goal is to look back years from now and say “in 2025 we said this, and look at us now”. The first battle was won in 1789, with the drafting of the constitution, and it’s taken 200 years for it to become law, so MaDada have got to take a long view and set milestones which they can achieve and look back at and say how they’ve got there.

What are the key takeaways from working with Access Info?

A long view is needed, the law will never be “perfect” and will never get there immediately but small milestones and steps are the way to go. Also, you can really break this down and organise it like an engineering problem.

The transnational view was so helpful: they hadn’t realised how much it would be, but it’s good to have the feeling of “we’re in this together”. Finally, they made a list of what documents you can actually request in France and even they were surprised by how many it was!

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Image: Mathias Reding

We’ve recently been considering whether we should add individual courts to WhatDoTheyKnow.com, so that users could make FOI requests to them in public. Doing so would certainly align with our wider mission of making it easy to access information from public bodies; but there are also some clear reasons against their inclusion. 

In this post we’ll examine both sides of the issue. But first, some context.

At the moment, FOI requests for information held by courts can be made via the listing on WhatDoTheyKnow for the courts service, HMCTS. Individual courts are generally not considered to be authorities in their own right, so this would mean adding bodies that are not strictly subject to FOI themselves — which is not a new concept for us: we will often list parts of public bodies separately if we think this will help our users.

Transparency is particularly important when it comes to courts, as they exercise the power of the state and their decisions can have huge impacts on individuals, organisations, the environment and society. 

In favour of listing individual courts

Further to our general principle that it is good to give access to governmental bodies serving the public, there are some more nuanced reasons to include courts in our listings:

• Requests often end up there anyway. On receipt of a request better answered by a local or individual court, HMCTS will often forward it to them, or advise the request-maker to contact the court directly themselves. The FOI process may be quicker and more efficient for all parties if requests are just sent directly to the court in question.
• It would serve an educational purpose Listing courts individually would promote the fact that FOI requests can be made for information held by courts.
• Information can be obtained from courts via FOI. Statistics, information on spending, details of room usage etc. could all be requested from courts, and we would expect such requests to be successful. Section 32 of the FOI Act exempts court records, meaning they’ll just refuse an FOI request for these, but you should be able to access other information that they hold.
• Separate requests may not trigger the cost limit Under Section 12 of the Act, authorities can refuse FOI requests if it will take them more than a certain number of working hours to provide the information. Requests made to a series of individual courts may not be aggregated for the purposes of considering the cost limits, and more information may be obtained via a series of requests made to individual courts than would be obtained via a request made to the court service centrally.

Against listing individual courts

There is really just one substantial reason against listing courts, but it is important and we give significant weight to it:

• Courts may release sensitive information When authorities respond to a request made through WhatDoTheyKnow, the information they release is published on the website. But there are rights other than FOI that give access to information from courts, eg section 5.8 of the Criminal Procedure Rules and Part 5 of The Civil Procedure Rules 1998. Court officers may consider that, due to these provisions, they are required to release information which it would be irresponsible, and sometimes illegal, to publish in response to requests made through WhatDoTheyKnow.

In conclusion

Having worked our way through these pros and cons, we conclude that listing individual courts on WhatDoTheyKnow is currently high risk, and probably not the best way to pursue greater transparency from the court system.

As in other areas, rather than improving the way requests for information are handled, proactive publication of material such as information on cases before courts, and their outcomes, would be preferable. Information which it is not appropriate to publish should be separated from other material by the courts service.   

Another approach is to make FOI requests to bodies such as the police, for material they have presented to courts, and such requests may well be successful. 

It is worth noting that there are currently three courts listed on WhatDoTheyKnow:

• Supreme Court of the United Kingdom
• The High Court of the Justiciary, which is the supreme criminal court of Scotland.
• The Judicial Committee of the Privy Council

Due to the nature of the work that these courts undertake, we believe they are lower risk listings than others. In the case of the Supreme Court they do even have their own FOI contact point and publication scheme, so should be used to responding responsibly and appropriately to FOI requests.

If you want to join the discussion of the question examined in this post, you can do so on the public “ticket” for this issue on GitHub, or you can contact the WhatDoTheyKnow team.

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Image: Tingey law firm