Proposal to Halve Thirty Year Rule

January 30th, 2009 by Anya Proops

An official Committee headed by Paul Dacre (editor of the Daily Mail) has this week published its report on the 30 year rule. The phrase ‘30 year rule’ is commonly used to describe the point at which records created by government departments are transferred to the National Archives, and at which most of these records are released to the public. The rule must be seen as working in tandem with FOIA. Thus, many of the exemptions afforded under Part II FOIA are automatically disapplied if the information which has been requested is more than 30 years old (see further sections 62 and 63 FOIA). The Committee concluded that the 30 year rule, which was introduced by Harold Wilson’s government, is ‘anachronistic and unsustainable’ (para. 6.1 of the report). It proposes that the thirty year rule be halved to 15 years. The move to a 15 year rule, which the Committee recommends should be phased in over a period of time, would require amendments of the provisions in FOIA which deal with historical records, namely sections 62 and 63 FOIA and also of the Public Records Act 1958.

Other notable features of the report include the following:

  • On the subject of civil servants’ attitude to FOIA, the Committee noted that concerns had been expressed by both retired civil servants and those in post that early disclosure of official records may in some circumstances have a deletorious, ‘chilling’ effect on the civil service and the operation of government more generally (see paras. 5.15-5.19). However, the Committee also concluded that: Most [civil servants] have come to terms with the new FoI regime, and some argue that the prospect of early scrutiny concentrates the mandarin mind, and thus produces better argued papers and fuller record-keeping’ (see para. 5.20; see also paras. 6.6 and 6.7).  This conclusion should be compared with the position which the Government has adopted in a number of Information Tribunal cases, where concerns have been expressed that disclosure under FOIA of particular information would be likely to have a chilling effect on the activities civil servants (see further Department for Education and Skills v Information Commissioner, Department for Work and Pensions v Information Commissioner and Office of Government Commerce v Information Commissioner and O’Brien v Information Commissioner and Department for Business and Regulatory Reform).
  • In view of concerns which had been expressed about the effects of FOIA on civil servant record keeping, the Committee recommended that the Civil Service Code be revisited with a view to seeing whether it needs to be amended to include an explicit injunction to keep full, accurate and impartial records of government business (para. 8.4).
  • To avoid civil servants being unfairly criticised while they are still in post, the Committee recommended that, wherever possible, information identifying civil servants should be redacted in any disclosed records (para. 8.6).
  • The Committee also suggested that the 15 year rule may require a re-think on the approach to the disclosure of sensitive information under FOIA (para. 8.7).
  • The Committee recommended that non-political records kept by special advisors should not be exempt from disclosure under the Public Records Act or FOIA (para. 8.10).
  • It is worth noting the Committee’s analysis of the more liberal approach to the disclosure of official records which has been adopted in other countries (see para. 3.18).

The Committee’s report:

http://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

Tribunal decisions on ‘chilling effect’:

http://www.informationtribunal.gov.uk/Documents/decisions
/DeptEdandSkillsVInfoCommandTheEveningStandard19Feb07.pdf

http://www.informationtribunal.gov.uk/Documents/decisions
/DeptforWork_PensionsVInfoComm5Mar07.pdf

http://www.informationtribunal.gov.uk/Documents/decisions
/office_of_govern_commerce_v_infocomm%20_2May07.pdf

http://www.informationtribunal.gov.uk/DBFiles/Decision/i258/
O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)
%20Decision%2007-10-08.pdf

Appeal in Data Sharing Case

January 28th, 2009 by Anya Proops

The Information Tribunal has been seized by an appeal against a decision of the Information Commissioner in a case on data sharing. The Appellant requested information from the Cabinet Office relating to a Cabinet Committee which had been set up to consider data sharing in the public sector. The Cabinet Office disclosed some information. However, it refused to disclose minutes of the Committee’s meetings on the basis that they were exempt from disclosure under section 35 FOIA (policy exemption). The Cabinet Office also refused to disclose the names of junior civil servants who attended the meeting on the basis that this information was exempt under section 40(2) FOIA. The Commissioner held that that the Cabinet Office’s refusal to disclose the minutes was lawful. The Appellant is now appealing the Commissioner’s decision to the Tribunal.

Information Commissioner’s Decision Notice:

http://www.ico.gov.uk/upload/documents/decisionnotices/2008/fs_50177136.pdf

Closed Sessions in High Court Appeals

January 27th, 2009 by Anya Proops

Last week the High Court heard an appeal brought by the Government against the decision of the Information Tribunal in O’Brien v Information Commissioner & Department for Business Enterprise and Regulatory Reform. The appeal concerned, in particular, whether the Tribunal had erred when applying the public interest test in the context of the exemptions afforded under section 35 (policy development) and section 42 (legal privilege) FOIA. During the course of the appeal, questions where raised by the Respondent (Mr O’Brien) as to whether the Court had jurisdiction to consider: (a) an annex to the decision which the Tribunal had stated should remain confidential to the Commissioner and BERR, pending any further appeal; and (b) the disputed information which had been withheld by BERR. It was argued on behalf of the Commissioner: (a) that the Court had jurisdiction to consider the confidential annex as that annex clearly formed part of the decision which was being appealed; and (b) that the Court had power to consider the disputed information in closed session pursuant to CPR 52.10(1). In summary, CPR 52.10(1) affords the court all the powers of the lower tribunal which is being appealed from, subject to any enactment which precludes the court enjoying such powers.  A judgment on the appeal is awaited.

Tribunal decision:

http://www.informationtribunal.gov.uk/DBFiles/Decision/i258/O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)%20Decision%2007-10-08.pdf

Government Appeals in Meta Request Case

January 27th, 2009 by Anya Proops

In Home Office & Ministry of Justice v Information Commissioner, the Information Tribunal was called upon to decide the novel question whether information about internal FOIA processes operated by public authorities was itself susceptible to disclosure under FOIA. The information in issue in the case related to some 48 requests which had been made by or on behalf of a particular media organisation. The Government sought to argue before the Tribunal that it was lawfully entitled to withhold the requested information on the basis that  it was exempt under section 36 FOIA (prejudice to conduct of public affairs). In a robust decision, the Tribunal rejected the Government’s appeal. It found that the information was not exempt under section 36. It also found that the Government had erred by treating the requested information, in effect, as a special class of information which was less susceptible to disclosure under FOIA than other types of information. The Government is now appealing the decision to the High Court.

Tribunal Decision:

http://www.11kbw.com/judgments/docs/HomeOfficeMoJvIC.pdf

Legal Week Article:

http://www.legalweek.com/Navigation/32/Articles/1197080/Freedom+of+Information+Act+Under+orders+to+disclose.html

Government Superdatabase

January 27th, 2009 by Anya Proops

Over the last few months, there has been considerable media coverage of Government plans to introduce a new ‘superdatabase’ designed to track all internet and telephone use. The stated purpose of the database is to assist law enforcement agencies by facilitating access to information currently held by individual Telecoms companies. It is expected that the Government will publish its detailed proposals later on this month. However, the new Director of Public Prosecutions, Kier Starmer QC has already expressed the view that, provided that proper safeguards are put in place, the database would be legitimate. Mr Starmer’s assessment contrasts starkly with that of his predecessor, Sir Ken MacDonald, who expressed the view that the database would create a ‘hell-house’ of personal privae information. The Information Commissioner has previously warned that the creation of such a database would raise serious data protection concerns (see his 15 July 2008 Press Release).

Draft Communications Data Bill:

http://www.commonsleader.gov.uk/output/Page2461.asp

Information Commissioner’s Press Release

http://www.ico.gov.uk/upload/documents/pressreleases/2008/annual_report_web_version.pdf

Facebook at work

January 27th, 2009 by Timothy Pitt-Payne QC

I’m a great admirer of Pinsent Mason’s “Out-Law” website.  It’s a fascinating source of information law material. 

Today, there’s an opinion piece about the use of social networking sites by employees.  It argues that in some circumstances employers are entitled to control the use that employees make of sites such as Facebook, even outside working hours.    There is a risk of reputational damage:  for instance, a newspaper that aims for politically impartial journalism could be damaged if its writers reveal their own personal political views online.

Personal use of the internet during working time is a legitimate concern to employers – just as they may rightly be concerned about the use of the phone system for long private calls.  But what about curtailing employees’ freedom of expression and social interaction in their own time?  It is suggested that any employer who went down this route would need both a very strong justification, and a tightly-drawn policy that was clearly communicated to their employees.

In considering any specific case, careful consideration would need to be given by employers to how widely any objectionable material posted by an employee could be viewed – was it visible to a small group of friends, for instance, or to a network of millions of people?

There’s a much broader issue here.   Social networking is very widespread indeed among today’s student generation.  When they begin their working lives, will they find that their online activity impedes their search for a job?  Or that it comes back to haunt them later in their working lives? 

The reference for the opinion piece discussed above is at:

http://www.out-law.com//default.aspx?page=9738

For discussion of the issues that arise when an employer considers that an employee’s online activities are damaging to its reputation, see Pay v Lancashire Probation Service, available online at:

http://www.employmentappeals.gov.uk/Public/Upload/EAT1224021192003.doc

Marper in the European Court of Human Rights

January 27th, 2009 by Timothy Pitt-Payne QC

I have a short article about the above in February’s Counsel magazine.  A longer version appeared in the NLJ earlier this month.

Coroners and Justice Bill

January 24th, 2009 by Timothy Pitt-Payne QC

The Coroners and Justice Bill was introduced into the House of Commons on 14th January 2009 and will have its Second Reading on 26th January 2009.

 
The title sounds remote from information law; but Part 8 of the Bill contains some  important proposed amendments to the Data Protection Act 1998. 

In the first place, there are provisions giving the Information Commissioner new inspection and audit powers in relation to government departments and certain other public bodies, in order to assess their compliance with the Data Protection Act.  These appear to be a response to the well-publicised series of public sector data losses over the last year or so.

More controversially, the Bill makes provision for information-sharing orders, designed to facilitate the use of personal information for purposes other than those for which it was originally obtained.  Data sharing is a subject of long-standing debate (especially within the public sector);   it was recently considered in the Wolpert/Thomas data sharing review.  The Bill is intended to bring greater clarity to this area.   The proposals have however drawn a hostile response from some civil liberties groups concerned with personal privacy. 

For the full text of the Bill as introduced, see:

http://www.publications.parliament.uk/pa/cm200809/cmbills/009/2009009.pdf

For a Ministry of Justice paper explaining the various powers to make delegated legislation that are contained in the Bill, see:

http://www.justice.gov.uk/docs/coroners-justice-bill-memo-hol-delegated-powers.pdf

For the Wolpert/Thomas review, see:

http://www.justice.gov.uk/docs/data-sharing-review-report.pdf

For criticism of the proposals, see:

http://www.boingboing.net/2009/01/23/worstever-threat-to.html

Barack Obama in FOIA drama

January 22nd, 2009 by Timothy Pitt-Payne QC

On his first full day in office – 21st January 2009 – President Obama issued a Memorandum for the Heads of Executive Departments and Agencies about how they are to apply the US Freedom of Information Act.

Here’s an extract:

 

A democracy requires accountability, and accountability requires

transparency. As Justice Louis Brandeis wrote, “sunlight is said

to be the best of disinfectants.” In our democracy, the Freedom

of Information Act (FOIA), which encourages accountability through

transparency, is the most prominent expression of a profound

national commitment to ensuring an open Government. At the

heart of that commitment is the idea that accountability is in

the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a

clear presumption: In the face of doubt, openness prevails.

The Government should not keep information confidential merely

because public officials might be embarrassed by disclosure,

because errors and failures might be revealed, or because

of speculative or abstract fears. Nondisclosure should never

be based on an effort to protect the personal interests of

Government officials at the expense of those they are supposed

to serve. In responding to requests under the FOIA, executive

branch agencies (agencies) should act promptly and in a spirit

of cooperation, recognizing that such agencies are servants of

the public.

All agencies should adopt a presumption in favor of disclosure,

in order to renew their commitment to the principles embodied

in FOIA, and to usher in a new era of open Government. The

presumption of disclosure should be applied to all decisions

involving FOIA.

For the full document, see:

http://www.eff.org/files/filenode/foia/2009foia.mem.rel.pdf

MPs expenses – another twist in the tale

January 21st, 2009 by Timothy Pitt-Payne QC

The long-running story of how the Freedom of Information Act (FOIA) applies to MPs’ expenses took another twist today, with the abandonment of plans to amend FOIA so as to limit disclosure.

In February last year the Information Tribunal ruled that the House of Commons had to disclose detailed information about claims by individual MPs for the Additional Costs Allowance (ACA).  Broadly speaking, this allowance defrays hotel or second home expenses incurred in the performance of Parliamentary duties.  An appeal by the House of Commons to the High Court was unsuccessful.  The effect appeared to be that in the great majority of cases the House of Commons would need to disclose information about each item of expenditure claimed by each individual MP.  Although the case was specifically about the ACA, clearly it had implications for MPs’ expenses generally.

Last week Harriet Harman MP, Leader of the House of Commons, announced a proposal whereby information about MPs’ expenses would be published in summary form, under 26 different categories, rather than item by item.  FOIA would be amended so as to negate the effect of the earlier Tribunal and High Court decisions.

Today it was announced at prime minister’s questions that the proposed amendment had been shelved.  It remains to be seen whether there will be any further proposal to amend the legislation.

For those with a close interest in FOIA, the mechanism used for the proposed amendment was very interesting.  The public authorities covered by the Act are listed in Schedule 1.  Section 7(3) allows the Secretary of State by order to amend Schedule 1, inter alia so as to limit to information of a specified description the entry relating to any public authority.  The proposed order would have provided that the Houses of Parliament were not “public authorities” in relation to information about MPs’ expenses, save to a very limited extent.  In other words, section 7(3) effectively allows the scope of the Act to be reduced, without the need for primary legislation.

The Information Tribunal decision referred to above is at http://www.informationtribunal.gov.uk/DBFiles/Decision/i85/HoC3.pdf.  The High Court decision is at http://www.bailii.org/ew/cases/EWHC/Admin/2008/1084.htm. For BBC coverage of the story, see http://news.bbc.co.uk/1/hi/uk_politics/7831565.stm and

http://news.bbc.co.uk/1/hi/uk_politics/7842402.stm