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Archives for May 2009

Paying tax for FOI

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Martin Rosenbaum | 17:23 UK time, Wednesday, 27 May 2009

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The has acquired an unusual status.

It appears to be the only public sector organisation which the TaxPayers' Alliance should have more money.

Taxpayers Alliance demoThe TPA has been a notably shrewd and effective of freedom of information - assisted by the fact that data about how public money is being spent is often the easiest kind of information to obtain through FOI.

There are other campaign groups which have also exploited the opportunity of FOI, such as the and the .

This is all part of a growing role for campaign organisations in deploying FOI to promote their agenda, to my colleague Jeremy Hayes. It's one of the topics he explores in a he's written for the , which provides a very good overview of the impact of FOI on journalism in the UK.

Yet in Scotland the Scottish Information Commissioner Kevin Dunion has been surprised by the low usage of FOI by Scottish campaigning and voluntary organisations. He's supporting a to explore this further. However I'm not sure whether this would meet with the approval of the TaxPayers' Alliance.

Give me your answer, fill in a form

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Martin Rosenbaum | 10:13 UK time, Tuesday, 26 May 2009

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John LennonThe Metropolitan Police Special Branch does not hold any information about John Lennon.

That's perhaps not the most exciting intro, but it is a fact which it has taken nearly three years to establish. It took me so long to find out.

The 91Èȱ¬ asked the Metropolitan Police under freedom of information for such material back in September 2006, but the Met simply refused to confirm or deny whether Special Branch, which covered political matters, kept anything on Lennon. The answer to this was something inside that was always denied.

We know Lennon did come to the of other sections of the Met, but were they also monitoring his political activities? Last month the Information Commissioner ruled there will be an answer.

He overturned the police refusal to say whether or not they possessed any relevant records in a which was highly critical of the Met's FOI procedures, telling them in future to indicate precisely what you mean to say.

The Met has now told the 91Èȱ¬ that as it happens they don't actually hold any such material. If they had told us this in the first place they wouldn't have had to go through all the extra effort of internally reconsidering their decision when asked to review it and then having to argue their case with the Commissioner. With every mistake we must surely be learning.

Public authorities sometimes complain about the administrative burden imposed by having to respond to freedom of information requests. For those of you who are FOI officers, you know it ain't easy, you know how hard it can be.

But occasionally I am forced to wonder whether authorities respond in a way which actually increases their own workload quite unnecessarily. In fact, I'm certain that it happens all the time.

It must be a hard day's night in the offices of the Metropolitan Police freedom of information team, eight days a week, where thoughts meander like a restless wind inside a letter box ...

The state of FOI

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Martin Rosenbaum | 12:53 UK time, Wednesday, 20 May 2009

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Big BenAs , it's worth asking what this whole episode tells us about the state of freedom of information in the UK. I've come to the following conclusions so far - and would be very interested in your thoughts on them.

(1) Freedom of information has been proved to be a valuable tool in promoting accountability for the spending of public money. Whatever its other merits or demerits, this surely can't be denied.

If an FOI Act had not been passed, this information would never have entered the public domain. It would not even have been collated in one place. Possibly some individual scandals might have emerged, but nothing approaching the scale of what has now come out. And so without FOI, there wouldn't have been anything like the same pressure for reform of what is now universally regarded as an unacceptable system.

Green Book(2) However, FOI legislation itself can be insufficient to change behaviour. The Freedom of Information Act was passed in 2000; ; the Act then came into force in 2005. Yet from the material published by the Telegraph, this clearly did not deter many MPs from their questionable claims.

Maybe they did not envisage the eventual level of disclosure; maybe they had convinced themselves that the House of Commons Commission would manage to block the FOI requests, or that the Parliamentary attempts to exclude MPs from FOI would succeed; maybe, captured by a form of groupthink, they just reckoned that there was safety in numbers.

The FOI Act has only made a big difference because people used it, in this case a number of journalists - freelance , the Sunday Telegraph's , and the Sunday Times' Jon Ungoed-Thomas - who were determined to ask questions and fight their case through the courts against the resistance of the House of Commons authorities.

(3) The drive to transparency over MPs' expenses wasn't much to do with the Information Commissioner. :

"It is not necessary for fully itemised amounts to be disclosed in order to meet the legitimate interest of members of the public in knowing how public money has been spent".

It was at the next stage in the appeals process where . Unsurprisingly, there are those within the Information Commissioner's Office who look back at that initial decision and think that it was not their finest hour.

(4) And of course the Telegraph revelations are based on a leak, not on the redacted material that the Commons was about to be forced to release under FOI. This more limited material would undoubtedly still have provoked a huge public outcry and some reform of the system, but would probably not have exposed some of , mainly because of the which has outlawed disclosures relating to MPs' addresses.

(5) In short, freedom of information was a necessary but far from sufficient condition for the publication of all this data.

(6) Nevertheless, freedom of information is now in a stronger and more established and entrenched position. In many countries, - for example in Ireland where the government introduced up-front fees for FOI requests, which .

Here in 2007, , plans then when he took over. More recently, some have worried that about the could indicate plans to curtail access to internal government policy documents.

However, it seems to me that in the wake of the expenses scandals, politicians in the UK will now find it very difficult to propose any curbs on freedom of information.

(7) On a more journalistic note, the Telegraph has placed in the public domain during this period, well in excess of what is normal even for a very big, long-running story. Much of their reporting hasn't really distinguished in tone and prominence between various degrees of misbehaviour, whether it has been cheating and duplicity, extravagance and greed, devious exploitation of the laxity of the arrangements, seizing eagerly at what's on offer, more marginal playing of the system, inadvertent error, the puzzling but explicable or amusing trivia.

This may just be the inevitable consequence of the vast quantities of material that the newspaper possesses, some of which is complex and capable of multiple interpretation, and the difficulty - if not impossibility - of properly evaluating its full significance in the time available.

telegraph_expenses226b.jpgSome of my colleagues see this as a flaw in the Telegraph's reporting, but there are others (if fewer in number, on the basis of my conversations) who regard this as a good thing - founded on the principle of just putting the information out there and letting the public assess it.

The relevance of this for FOI-based journalism is that information requests can often extract large amounts of data, whose full significance is not immediately apparent. In the future, we may see more examples (although presumably on a much lesser scale) of the media publishing quantities of material without telling their audience what the "story" is.

(8) Finally, in keeping with , an apology of my own. In the past, I expressed the opinion that the persistent attempts by the House of Commons to prevent full publication of material about expenses was doing more harm to its reputation than would probably be caused by the eventual release. Doubtless there are cases where the reputational damage from insisting on secrecy is greater than that potentially resulting from release of the material in question - but this isn't one of them. Sorry I got that wrong.

FOI extension to private sector

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Martin Rosenbaum | 17:26 UK time, Wednesday, 13 May 2009

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It's just been revealed that the government will be extending freedom of information to cover some private sector organisations.

Those private bodies affected will be some of those who carry out functions on behalf of public authorities.

Michael WillsThis was disclosed this afternoon by the Justice Minister Michael Wills at a conference organised by the Information Commissioner's Office (the same one where Jack Straw spoke earlier).

This follows the government's on this proposal. Mr Wills told the conference that ministers will announce their response to this consultation very soon, and when pressed added "there is going to be an extension of FOI".

He did not indicate who would be covered by such an extension. The most likely candidates include academy schools and the Association of Chief Police Officers, but we will have to wait and see how far - and how quickly - the government wants to go in extending freedom of information to parts of the private sector.

The added value of FOI

Martin Rosenbaum | 16:25 UK time, Wednesday, 13 May 2009

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You are a cabinet minister running a large department and you want to know more about what's going on within it - what can you do?

Jack StrawYou could hope that someone might put in a freedom of information request - at least you could if you are the Justice Secretary Jack Straw.

He has just told a conference that FOI helps make large institutions more accountable not only to ordinary citizens but also to those actually responsible for running them.

He remarked that he signed off on an FOI request last night. As a result he discovered data about numbers arrested for breaches of probation orders.

He added that it will be embarrassing for the government when it comes out - but he felt it was important data and he's now asked his officials why this material is not collected routinely.

UPDATE, 15 May: is the information to which Jack Straw was referring, published on the Ministry of Justice website.

How MPs could have avoided FOI

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Martin Rosenbaum | 12:20 UK time, Monday, 11 May 2009

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Can MPs manage to put their embarrassing receipts for expenses claims beyond the reach of the Freedom of Information Act in future?

It's been that some of them hope to do this by creating a new independent unit to handle expenses claims, which would then be handed over to the private sector. It's claimed that receipts processed by a private company would not be available to the public under FOI.

Big BenI'm far from convinced this would work. Under the , information is covered if "it is held by another person on behalf of the authority". (That's in section 3(2) of the Act).

There may be room for argument over what "on behalf" means, but the Information Commissioner has already ruled in at least that data held by private companies is held on behalf of a public authority and in principle subject to FOI.

These of course are simply the legal considerations - the political considerations also may make any attempt by MPs to evade the FOI searchlight somewhat difficult given the further bad publicity that would result.

Ironically things could have turned out very differently if it had not been for decisions taken by the government when the Freedom of Information Act was being drafted several years ago.

The government's first FOI plans were laid out in its White Paper "Your Right to Know" published in 1998. Many freedom of information campaigners regard this as the high point of the government's commitment to FOI, yet (paragraph 2.3):

"A very few public bodies, because of the nature of their role, will be completely excluded from the Act. Parliament, whose deliberations are already open and on the public record, will be excluded."

Many of the far-reaching openness proposals in this document were then weakened by uneasy ministers, but in a few respects they decided to go further. And Parliament was one.

By the time a draft Bill was issued in 1999, the consultation document with it (paragraph 28):

"We are discussing with Parliamentary authorities whether it is possible to bring Parliament and organisations directly accountable to Parliament within the scope of the Bill, without breaching Parliamentary Privilege. Discussions are continuing on this point and if it is practical to bring Parliament within the scope of the Bill, we shall do so."

And by the time the Act itself was introduced, Parliament was covered by FOI.

Back in 1999 it might have been much easier for MPs to have kept the workings of the House of Commons outside the reach of freedom of information, if they had insisted on it then. Ten years later it will be an awful lot harder.

So what made ministers change their minds back in 1998 on whether Parliament should come under FOI?

One important factor was the , which argued (paragraph 37):

"There are many administrative functions carried out within Parliament which, it seems to us, do not need to be protected, any more than do those of the police. The justification for the exclusion of Parliament has not been made out. The exclusion may well convey the wrong impression to the general public, given the purpose of this legislation."

Who were the MPs on this committee who helped bring the Commons within the FOI Act? Ronnie Campbell, Mike Hancock, Helen Jones, Fraser Kemp, David Ruffley, Richard Shepherd and Andrew Tyrie, who are still in the House; and Peter Bradley, Lynda Clark, Melanie Johnson and Rhodri Morgan (the chair of the committee), who are no longer in the House.

The role of FOI in MPs' expenses

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Martin Rosenbaum | 09:21 UK time, Friday, 8 May 2009

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Many MPs have fought hard for a long time, but eventually without success, to prevent the publication of detailed information about their , both through the and through .

During this process, it was often said that the persistent resistance of the House of Commons to releasing this material was doing more damage to the reputation of Parliament than the information itself would be likely to. We are now about to find out, initially in the pages of the , if this is really the case.

The enormous fuss over MPs' expenses was not widely predicted as a consequence of FOI. When the Freedom of Information Act was passed nine years ago, it was generally envisaged that its most high-profile cases would be about scrutinising the decisions of the executive, not of the spending habits of the legislature.

There is plenty of debate as to whether freedom of information has achieved the various aims that some people hoped for when it was introduced here, such as improving public participation in decision-making.

But no-one can surely deny that, on the example of MPs' expenses, it has increased accountability in the spending of public money.

Today's revelations would not have happened without the FOI Act, that is clear. Yet they are actually based on a leak, not legally-enforced disclosure. And the material goes beyond what the Act - as amended to exclude MPs' addresses - would require ().

From the FOI viewpoint, argues that without these addresses, the newspaper would not have been able to shed light on some of the questionable practices it reveals. So some of today's revelations may be as much as about leaking, or "chequebook journalism", as about freedom of information.

But there is one other point to bear in mind here. It's not always the case that legislatures are covered by Freedom of Information Acts. The United States Congress, for example, is not covered by the US FOI Act.

Ministers took the decision to include Parliament in the Act in the UK. They doubtless did not foresee all the consequences and may be regretting that decision.

Certainly, there are MPs who might not have voted for freedom of information if they'd realised what information was going to be made free as a result.

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