Archives for Katherine Gundersen

Justice Committee post-legislative scrutiny commences

Committee Room 8
Meeting starts at 10.30am

Post-legislative scrutiny of the Freedom of Information Act 2000

Witnesses

Campaign for FOI (@campaignFOI), Unlock Democracy (@UnlockDemocracy), and WhatDoTheyKnow (@WhatDoTheyKnow)

Professor Robert Hazell CBE, Director, Jim Amos, Honorary Senior Research Associate, and Ben Worthy, Research Associate, UCL Constitution Unit

You can watch the session live or recorded here.

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Lords discuss FOI amendments to Protection of Freedoms Bill

Amendments to improve the Freedom of Information Act, which the Campaign for Freedom of Information supported, were debated in the House of Lords during report stage of the Protection of Freedoms Bill yesterday.
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Ministerial veto used for third time

The Campaign for Freedom of Information expressed regret at the Attorney General’s decision today to veto the release of minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions (DSWR). The Information Commissioner had ordered their partial disclosure under the Freedom of Information Act (see earlier post). However, the Commissioner agreed that information directly identifying individual ministers should be withheld as should certain passages discussing “the more sensitive areas of policy” and the legal advice referred to in the minutes. The Cabinet Office’s appeal to a Tribunal against the decision was due to be heard next month.
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Briefing on the future of the FOI Act

2 pm Wednesday 18 January 2012
 
Campaign for Freedom of Information, 16 Baldwins Gardens, London EC1N 7RJ

The Freedom of Information Act is being reviewed by a parliamentary committee which is likely to recommend changes to the law. This could be an important opportunity to improve the Act. But there will also be significant pressure for new restrictions from public authorities concerned about the cost of dealing with FOI requests or lobbying for new exemptions.

If you would like to contribute to the exercise, it is important to act quickly. The deadline for submitting evidence to the committee is 3 February 2012. The Campaign for Freedom of Information is holding a briefing meeting on January 18 at 2 pm for those who are considering giving evidence.
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MoJ discloses further details about extension of FOI

Following a FOI request by the Campaign for Freedom of Information (see earlier post), the Ministry of Justice have disclosed further details about the bodies they are consulting on FOI coverage.
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Tribunal decision on Article 10

The First-tier Tribunal has published its report to the Court of Appeal in the case of Dominic Kennedy v Information Commissioner (EA/2008/0083). The case relates to a request by Dominic Kennedy, a journalist with The Times, for information concerning the Charity Commission’s investigations into George Galloway’s ‘Mariam Appeal’. The Charity Commission refused the request citing the absolute exemption in section 32(2) of the FOI Act for information held solely for the purpose of a statutory inquiry. The refusal was upheld by the Information Commissioner, the First-tier Tribunal and the High Court.
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Universities UK lobbying for FOI exemption for research information

Universities UK, the representative organisation of universities in the UK, is lobbying for an amendment to the Freedom of Information Act to exempt research information. An amendment was tabled to the Protection of Freedoms Bill by Andrew Miller MP to introduce a new subsection to the section 22 exemption for information intended for future publication. The amendment was identical to section 27(2) of the Freedom of Information (Scotland) Act.
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Campaign makes FOI request about Government’s plans to extend the FOI Act

During Justice Questions in the House of Commons on 8 November 2011, the Minister was asked about the Government’s plans to extend the Freedom of Information Act.
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Duchy of Cornwall subject to Environmental Information Regulations

The First-tier Tribunal has ruled that the Duchy of Cornwall is a public authority under the Environmental Information Regulations. The Duchy was established by Charter in 1337 to provide an income for the eldest living son of the Monarch and heir apparent who automatically inherits the title Duke of Cornwall.  The Charter provides that the Duke is entitled to the income from the Duchy but not to the capital, thereby preserving the estate for his successors.

In evidence to the Tribunal, the Secretary and Keeper of the Records of the Duchy, confirmed that:

the estate currently comprises some 53,628 hectares of land and around 2,100 hectares of woodlands mostly in the south west of England, together with around 258 km (160 miles) of coastline, the Isles of Scilly, the navigable riverbed of the Tamar, most Cornish rivers and some rivers in Devon.

The case involved a request for information made by Michael Bruton, an environmentalist, who had become concerned about the introduction of non-native Pacific oysters at an oyster farm in Port Navas within the Duchy. Mr Bruton asked the Duchy for details of any consents or permissions given to the tenant of the oyster farm and details of any environmental assessments carried out regarding the impact of the oyster farm’s activities. The Duchy refused on the basis it was not a public authority for the purposes of the EIR, a decision which the Information Commissioner upheld. The questions for the Tribunal were whether the Duchy was a public authority under regulations 2(2)(c) or (d) of the EIR. In other words:

a) Whether the Duchy is a body or other person, and

b) If so, whether it carries out functions of public administration, or

c) Whether the Duchy is under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of

Both the Information Commissioner and Duchy argued that the Duchy is not a separate legal entity. Referring the Upper Tribunal’s decision in Smartsource, that the notion of ‘public authority’ is both place and time specific, the Tribunal disagreed:

whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR.

The Tribunal went on to consider whether the Duchy had functions of public administration.

The Tribunal’s ruling is the latest twist regarding the public’s rights to information about the Royal Family [see earlier post]. The Royal Family itself is not subject to the FOI Act and, following an amendment to the Act introduced in [to come], there now an absolute exemption for communications [to come] with the monarch, heir and second in line to the throne. However, this amendment does not apply retrospectively, so requests made before [to come] must be considered under the qualified exemption. A number of such requests are currently being appealed to the Tribunal. In addition, a number of requests for Prince Charles letters will be dealt with under the EIR, where no absolute exemption for his communications exist.

Finally, the Tribunal’s latest decision also opens the door for the Tribunal to re-consider whether the Duchy of Lancaster is subject to the EIR. In Cross [to come] the Tribunal found it did not come under regulation 2(2)(c) because the

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Speech on future of FOI by Lord McNally

The Ministry of Justice has published the full text of a speech given by Lord McNally at the Westminster Legal Policy Forum event ‘The future of freedom of information – challenges for expansion‘ which was held on 20 October 2011.

You can download the speech as a Word document here.

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