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McNally: FOI enthusiasm or the sticky note culture

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Martin Rosenbaum | 08:38 UK time, Monday, 24 January 2011

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Lord McNally, the minister in charge of freedom of information policy, says he once tried to submit an FOI request himself. He submitted his application to Network Rail - only to be frustrated when informed that this government-created company falls outside the scope of the Freedom of Information Act.

This was before he was a minister and so before he gained the knowledge of the UK's FOI system that he now possesses. Yet his experience illustrates one of the controversies that currently surround FOI policy - how far the right of access to information can, or should, extend.

Lord McNally

Earlier this month his government announced plans to broaden the scope of FOI to additional bodies, including various private organisations with public functions.

But ironically this did not extend to Network Rail. Although both coalition parties pledged before the election that it should be covered, Lord McNally says they will now wait while the restructuring of the rail industry is under consideration.

"It was discussed, but it didn't make the cut", he told me when I interviewed him about the government's current thinking on FOI policy.

Lord McNally gives every impression of being delighted with his area of responsibility within the Ministry of Justice. "I came into government convinced of the value of FOI, and I'm still an enthusiast. Freedom of information is the best guarantee of good government. It encourages people to behave properly and not cut corners."

"I've been an enthusiast for freedom of information for 40 years", he adds. In the 1970s, as Tom McNally, he worked for the Labour prime minister James Callaghan in Downing Street. He recalls that he tried unsuccessfully to persuade Mr Callaghan of the merits of FOI then.

But Lord McNally notes that his current colleagues in government include some who do not share the keenness he proclaims for freedom of information.

"If we all shared my enthusiasm, we might have a more radical policy than we've got," he says. "Some of them share Tony Blair's view". Mr Blair made it clear in his memoirs that introducing the FOI Act and thus helping to supply heavier ammunition to his enemies was one of his major regrets about his premiership.

Those now unhappy about FOI include some officials, according to Lord McNally. "I've had very senior civil servants say to me that we've replaced the normal process of decision-making with a 'Post-It note culture'". In other words, some advice is written on sticky notes which are then discarded rather than kept for the record.

The minister insists he has not experienced this himself, however. And he adds: "I've seen no sign of a chilling effect. I've not been aware of anyone pulling punches with the advice they've given."

Instead, he argues, "I suspect it's had the impact of improving the quality of advice. People make sure their submissions do cover the waterfront. I see it as a thoroughness effect, not a chilling effect."

"I'm not sure we've yet squeezed the culture of secrecy out of government. It varies from department to department. But the balance is changing. The more people get used to transparency, the more it will become accepted as the order of the day."

One minister who has previously expressed serious unease about the tendency towards greater openness in government is actually now Lord McNally's boss, the Justice Secretary Ken Clarke.

Perhaps appropriately for a minister in charge of transparency, Lord McNally is willing to confirm that he and his boss don't see eye to eye on this topic. "There's a difference between me and Ken Clarke. Ken is not an enthusiast for FOI."

Mr Clarke has been particularly resistant to extending FOI to private companies, even where they perform public functions, arguing that instead they should be answerable to their own shareholders. Lord McNally says that he would prefer to take a broader view of their role and bring more of those with public functions within FOI.

He strongly maintains that attitudes within the government to openness and information rights do not split on party lines. A Liberal Democrat himself, he states: "My biggest ally is Francis Maude with his transparency agenda and also Eric Pickles with his for local government."

The formal consultation process which is legally required for the proposed extensions to FOI is now beginning. But further developments on FOI policy may later follow from another decision announced this month - to subject the FOI Act to a process known as "post-legislative scrutiny",

The Ministry of Justice will draw up a memorandum reporting their assessment of how the Act is working in practice. It will then be examined by a parliamentary committee.

Lord McNally says he is committed to building up the role of Parliament and he sees the FOI legislation as "an ideal Act to submit to post-legislative scrutiny". As a law passed in 2000, it is not automatically involved in this procedure in the way that applies to more recent legislation.

When discussing what might come out of this exercise, it is clear that Lord McNally sees downsides as well as upsides to openness and that it could lead to restrictions as well as extensions to freedom of information.

One issue to be explored is the right ministers currently have to veto tribunal decisions that material should be disclosed. Before the election the LibDems proposed removing this.

He says: "In principle I'm still in favour of abolishing the ministerial veto but I understand that other things may have to be given in exchange."

He hints that this quid pro quo could be an absolute exemption for cabinet papers, which can currently be released if it is considered that would be in the public interest. At one point the Labour government planned to introduce this, but then decided against it.

The two instances so far of the ministerial veto being used were both to protect the secrecy of cabinet records, which the information commissioner or tribunal had ordered should be disclosed.

"Even as an enthusiastic FOI'er, I recognise there is a countervailing argument," says Lord McNally. "There has to be some private space for discussion within government."

"I want the committee to take evidence from ministers and public servants on whether there is a Post-It note effect."

He also wants to see more analysis of the pattern of FOI use. And there is another concern he thinks should be examined, the administrative cost for public authorities, or "Has FOI placed an extra burden out of proportion to the public good?"

"Post-legislative scrutiny should look at the international comparison and whether modest charging would have an effect and would it be beneficial," he adds. Any mention of charging for FOI requests will be particularly alarming to freedom of information campaigners and also to the Information Commissioner Chris Graham, who has come out strongly against this measure which was adopted some years ago in Ireland.

It's all a matter of balance, argues Lord McNally. "There has to be a balance between an insatiable right to know and allowing public services to get on with the job they have to do. It's an interesting point where legitimate scrutiny stops and being a nuisance starts."

However he is happy to accept that one inevitable consequence of FOI for government is to make it easier for political opponents to find evidence to criticise you with. "In ten years' time I hope I'm not as cynical as Tony Blair", he proclaims.

Finally he is keen to stress his confidence in the Information Commissioner, Chris Graham. "I hope that's demonstrated by the movement of more power and responsibility to him".

He would like to give the commissioner's office more independence from the Ministry of Justice. "I'm someone who wants to see Parliament take responsibility for bodies like that, but governments, coalitions, departments are a matter of agreement."

And doubtless it would be very interesting to read about the current deliberations within the government on all of this in their search for agreement. But Lord McNally leaves it there, and a freedom of information request is unlikely to obtain the policy papers and minutes of meetings, let alone the sticky notes, which would reveal the full detail of the internal discussions on FOI policy.

Who makes FOI requests?

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Martin Rosenbaum | 12:56 UK time, Friday, 14 January 2011

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One of Tony Blair's regrets about introducing the Freedom of Information Act was that it has mostly been used by journalists rather than by "the people", or so he claims.

Tony Blair

Now possibly this is true of those FOI requests to Downing Street which his staff told him about, but whether it applies to the less intrusive requests that never came to his attention is another matter altogether.

In any case at the time he wrote his memoirs he would have been unaware of the more recent activities of his former parliamentary colleague, Tom Watson, the Labour MP for West Bromwich East.

As an ardent Brownite organiser, Mr Watson was far from being Mr Blair's favourite person, but he's also become an enthusiastic opposition campaigner. He says he's submitted over 3,000 FOI applications since the general election.

Mr Watson writes:

"I love the freedom of information act. I accept that it's not a comforting piece of legislation if you happen to be prime minister. But for a backbench MP who believes in greater transparency in government, it's a great tool."

It all raises the question of what kind of person is actually making freedom of information requests. The data available to answer this question is limited. But I decided to look at one small source which is publicly available.

The Norfolk and Norwich University Hospital provides information on its website not only about all its FOI disclosures but also some details of each requester, and has done so since FOI applications were first made in 2005. As far as I know no other public authority has done this (if you know otherwise, I would be very grateful to hear from you).

We've analysed the 900-plus FOI requests which the hospital trust received in 2005 - 2010.

Table showing categories of requesters

One caveat is necessary: some requesters reported as individuals may actually have been making their request on behalf of an organisation without indicating that. And we should not forget this is only one public authority, which may not be representative of any others.

But the following patterns emerge from this data, such as it is:

The total number of requests was broadly stable for three years, suddenly doubled from 2007 to 2008, and has since remained stable again.

Most requests have come from individuals, with an increase over the past five years and a particular jump in the past year.

Media requests come second, with a pattern of fluctuation over the period.

Political requests come next, peaking in 2008/2009 and dropping rapidly since. Of the 126 requests from politicians or parties, 72 were from Conservatives, 53 from Lib Dems and just one from Labour. This suggests a process of trying to collect useful ammunition in the run up to the general election.

Requesting by businesses has steadily grown over the past six years, as the commercial sector perhaps becomes more aware of the opportunities presented by FOI. This is now the fourth major category of freedom of information applicant.

But actually for me the most surprising revelation was the several instances of hospitals using FOI to get information from other hospitals.

To take one recent example, the Royal Liverpool Hospital has been collecting information on the handling of emergencies which happen outside buildings but elsewhere on hospital premises, eg in car parks.

So who uses FOI? Journalists who in Tony Blair's words may be looking for more effective "mallets" to brandish at those in power (we prefer to call it scrutiny); opposition politicians who can also see a good use for such mallets; businesses who can see commercial value in information; and actually plenty of individuals who hope to find out stuff they want to know and may have a variety of motives. And occasionally there are also parts of the state who exploit it to find out more about other elements of the public sector

Revealed: Plans for extending FOI

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Martin Rosenbaum | 20:33 UK time, Thursday, 6 January 2011


The Bar Council, the Law Society and the Takeover Panel are some of the organisations which the government is planning to bring within the scope of freedom of information.

The Ministry of Justice will announce on Friday details of dozens of bodies which perform public functions that it wants to bring under Freedom of Information (FOI), so that people will have a legal right of access to information they hold.

The list will contain a range of organisations that have legal responsibilities to regulate parts of the private sector, as well as appeals tribunals for parking fines and some state-funded environmental projects. However freedom of information campaigners will be disappointed that, contrary to many expectations, Network Rail is not to be included.

I understand that bodies to be covered include the following:

the Law Society and the Bar Council, which regulate the legal profession;

the Advertising Standards Authority, which regulates the advertising industry;

the Panel on Takeover and Mergers, which regulates City takeovers;

the Quality Assurance Agency, which monitors standards in higher education;

the British Standards Institute, which develops and certifies industry standards;

the Independent Schools Inspectorate, the Schools Inspection Service, and the Bridge School Inspectorate - inspection services for private schools;

the Traffic Penalty Tribunal and the Parking and Traffic Appeals Service, which hears appeals against parking fines;

the Carbon Trust and the Energy Saving Trust - publicly funded green initiatives;

the Local Government Association and the NHS Confederation, as associations of public authorities already covered.

The government will begin consultations with the bodies involved with a view to bringing them under the FOI.

The Ministry of Justice will also confirm it is pressing ahead with extending FOI to three organisations previously indicated, the Association of Chief Police Officers, the Financial Services Ombudsman and the higher education admissions body UCAS.

However this does not amount to the "hundreds" of additional public and charitable bodies that have been trailed in some reports.

And there are some notable exclusions. Before the election, both coalition parties pledged to extend FOI to Network Rail. According to a Ministry of Justice spokesperson, the government accepts "there is a strong case for its inclusion". But she added that ministers want to wait for a Department for Transport review of the structure of the rail industry before proceeding.

The government also has no plans to extend FOI to private utility and water companies, although whether they might be brought under the regulations that provide for disclosure of environmental information is less clear.

The plans to be unveiled on Friday will not go as far as some ideas proposed by the Liberal Democrats when in opposition, such as repealing the right of ministers to veto tribunal decisions instructing them to release material they want to keep secret.

Ministers will now implement plans to reduce to 20 years the 30-year rule which governs when most historical records are made publicly available in the National Archives. This will be phased in over a decade, starting in 2013, with two years' worth of records being transferred each year until the process is complete.

While these changes extend information rights, the government will also bring into force a measure to give the monarchy greater protection from FOI, with an absolute exemption for communications with the monarch and the heir to the throne.

Along with the reduction in the 30-year rule, this was included in last year's Constitutional Reform and Governance Act and was awaiting implementation.

In another reform, the Information Commissioner will be given greater autonomy on operational matters such as appointing staff. However this does not go as far as making the post report to Parliament rather than the Ministry of Justice, the level of independence which Chris Graham, the commissioner, has called for.

Nevertheless Mr Graham will welcome this limited increase in autonomy and the overall package of government measures as a boost for greater transparency.

Public authorities will also be required to proactively release data in a way that facilitates businesses as well as non-profit organisations re-using the information for commercial and social purposes.

All these steps may also be followed by further changes to the freedom of information system later.

The government will also announce that it will now undertake a further review of the Freedom of Information Act during 2011. A Ministry of Justice spokesperson said this will "cover the benefits brought by the legislation, how it is working in practice and an assessment of the costs of the operation of the Act."

She added: "We will be considering the way in which all exemptions function as part of our review of the Act. We have no intention to increase protection for Cabinet minutes at present."

Council objections to publication of spending data

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Martin Rosenbaum | 08:15 UK time, Thursday, 6 January 2011


Last week it was announced that so far fewer than half of England's councils had started publishing the spending data which the government wants them to disclose.

Screenshot of local government transparency timeline

Ministers have given local authorities a deadline of the end of January to issue online the details of their expenditure on items over £500. The Communities and Local Government department maintains a timeline to display progress towards this.

But documents obtained by the BBC under freedom of information show some councils have protested to the department about this demand from central government.

East Dorset council opposed the plan, complaining that "this will create work to comply with and...add no value at all." Its chief executive David McIntosh wrote: "Rather it is only likely to result in requests and therefore further work when the few people who bother to look at it ask for further clarification."

Mr McIntosh also called for the Freedom of Information Act to be revisited. His letter stated: "It's initial and laudable aim was to allow individuals to access information held about them by public authorities. In practise it is mainly used by companies, contractors, consultancies, students, employees, journalists and the public to access information for commercial, academic, editorial, or other purposes."

(Apart from the grammatical and spelling errors, Mr McIntosh is also wrong on the initial aim of the FOI Act. The law which gives individuals access to information about themselves is actually the Data Protection Act.)

Other councils which objected included Stoke-on-Trent which said the scheme "will increase paperwork and process" and Cornwall which said it "will require a disproportionate increase in resource".

Similarly Roger Tetstall, chief executive of Test Valley, told CLG that "the requirement to publish 'items of spend over £500' will result in significant amounts of staff time being wasted on dealing with frivolous, vexatious and idiosyncratic enquiries".

Wyre Council was another opponent. Its then chief executive Jim Corry also called for the government to "ban Freedom of Information requests from commercial companies as they are not in the public interest and waste valuable staff resources".

Some authorities did not object in principle to publishing spending data, but were unhappy about the threshold of £500. These included Gloucester, Newark & Sherwood, and Haringey.

Alan Jarrett, Deputy Leader of Medway Council, also questioned the £500 criterion: "I envisage that the resultant enquiries (both general and FOI) will be excessive and possibly vexatious, and will not assist public accountability."

Waverley Council was worried about other aspects of the department's transparency plans, expressing concerns for example about the idea of publishing online the details of licensing applications.

Its leader Robert Knowles wrote: "My worry is that the current drive towards transparency, while a sound political principle, must not be taken to an extreme, in which councils are spending large sums on processing and publishing information for which there is no local demand."

However it should be noted that these councils which told CLG of their objections or reservations about the government's openness agenda are only a small minority of over 240 which expressed views on how to reduce administrative burdens on local authorities.

In contrast there are many authorities which are highly enthusiastic, while there are certainly others who may not be keen but accept this is the way the wind is blowing and feel there is little point in protesting.

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