Campaigns

Restrictions on the disclosure of information in Environment Bill

The Campaign has produced a briefing for MPs for the second reading of the Environment Bill in the House of Commons on 26th February 2020.

We are concerned at the restrictions on disclosure of information in the bill:

  • The bill establishes the Office for Environmental Protection (OEP) but contains broad prohibitions on the disclosure of information about some of the OEP’s functions. The Explanatory Notes say these prohibitions do not affect the public’s right to information under the Environmental Information Regulations (EIR) except in one specified way. However, nothing in the bill itself establishes that the prohibitions do not override the EIR right to information. The bill should be amended to ensure that the EIR right of access is not undermined.
  • The bill would prohibit disclosure of information about OEP investigations into suspected failures by public authorities to comply with environmental law. The prohibition would only be lifted once the OEP decides to take no further action. However, the status of the information in question would be changed to allow a particular EIR exception that might not otherwise apply to be invoked. This would make it more likely that the information could be withheld under the EIR. That should not be necessary. Existing EIR exceptions protect information whose disclosure is shown to be harmful and not in the public interest.
  • A prohibition would also apply to information which public bodies supply to the OEP to assist it with its functions. The information could only be disclosed with the consent of the body supplying it. If the prohibition on disclosure trumps the EIR right of access, this information could be withheld indefinitely, preventing public access to information about matters such as progress toward meeting environmental targets.

Read the full briefing.

Government retreat on Environment Bill secrecy

Following our campaign on the issue, the government has largely dropped a proposed prohibition on disclosure in the Environment Bill.

Under the bill, a new body called the Office of Environmental Protection (OEP) would investigate serious failures by public bodies to comply with environmental law. But, worryingly, the draft bill had proposed to prohibit public access to most information about the OEP’s investigations, apparently overriding the right of access under the Environmental Information Regulations (EIR).

The Campaign was the first organisation to identify this problem. After highlighting it we co-ordinated a joint letter to the Environment Secretary signed by nearly 40 national organisations objecting to the prohibition. In reply a DEFRA minister claimed that they had not intended override the right of access. Following feedback from stakeholders and “recognising the concerns you have raised in your letter” DEFRA had “worked to address this in the final Bill”.
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Briefing on secrecy in the Health Service Safety Investigations Bill

The Campaign for Freedom has produced a briefing for second reading of the Health Service Safety Investigations Bill in the House of Lords on 29th October 2019.

We are concerned about a prohibition on the disclosure of information contained in the Bill. Under the bill, the Health Service Safety Investigations Body (HSSIB) would investigate selected NHS patient safety accidents or incidents and publish a report on each investigation. But it would be prohibited from making public any other information held in connection with its functions, except in limited circumstances. The prohibition would remove the right of access under the Freedom of Information Act and the right of individuals to see their own personal data under data protection legislation. Moreover, disclosure of protected information, other than in limited circumstances, would be an offence.

The prohibition is said to be necessary:

‘to create a ‘safe space’ within which participants can provide information for the purposes of an investigation in confidence and therefore feel able to speak openly and candidly with the HSSIB.’

If the purpose was to provide a safe space for participants it might be thought that what would be protected would be information likely to identify such a person, whether by name or position or indirectly from the content of what was said. In fact the prohibition on disclosure is not limited in this way.

It applies to any information held ‘in connection with’ the HSSIB’s function that is not already published, whether or not it relates to an identifiable individual, whether or not it relates to an identifiable investigation and whether or not it is capable of deterring participants from speaking frankly to investigators, inhibiting investigators in reaching their conclusions or causing any other adverse effect at all.

We think it is disproportionate and – given the substantial protection for sensitive information in the Freedom of Information (FOI) Act – unnecessary.

Read the full briefing.

Government urged to drop post-Brexit prohibition on environmental disclosure

40 leading environmental, open government and other organisations have signed a letter, which the Campaign for Freedom of Information co-ordinated, urging the government to drop a secrecy provision from draft legislation to improve environmental protection after Brexit. The organisations say the prohibition on disclosure “is wholly at odds with the public’s right to information” under existing UK legislation.
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Secrecy under the Environment (Principles & Governance) Bill

Photo by Sarah Sigler on Unsplash

The Campaign is concerned the government is using the Draft Environment (Principles and Governance) Bill to undermine the right of access to environmental information.

The bill establishes the Office for Environmental Protection (OEP), part of whose functions is to enforce compliance by public authorities with environmental legislation. Unfortunately, that function would be subject to a statutory prohibition on disclosure which would, we believe, override the right of access under the Environmental Information Regulations (EIR).

Under the bill:

  • the OEP would be prohibited from disclosing any information it obtained from an authority which it is investigating without the authority’s consent
  • the public authority would be prohibited from disclosing information about formal action being taken against it without the OEP’s consent
  • the OEP would be required to copy its correspondence with an authority to the minister but be prohibited from disclosing the minister’s reply without the minister’s consent.

What passes between the OEP and an authority under investigation is thus suppressible by whichever side is providing the information. Ministers could intervene in enforcement matters with the benefit of total secrecy. The existing right of access could not apply to any of this information.

These bars on disclosure would all be absolute and indefinite and apply regardless of the public interest in disclosure. This is a massive contrast with the existing position under the Environmental Information Regulations (EIR) which exempts information about investigations only if disclosure is likely to be harmful and subject to a duty to disclose in the public interest.

At present, the EIR right of access takes precedence over any statutory restriction on disclosure, which would make the prohibition pointless. The government must therefore intend to reverse this, so that statutory restrictions take precedence over the EIR right of access. It hasn’t acknowledged this, but that is the only explanation. This would probably allow all statutory restrictions to override the EIR right of access in future.

The normal EIR regime would be replaced by a blanket bar on disclosure of OEP enforcement action, far more restrictive even than that under the European Commission infraction process which the OEP enforcement function partly replaces.

We set this out in evidence to the Environment, Food and Rural Affairs Committee. Read the full submission here.

Response to ICO consultation ‘Openness by Design: Our draft access to information strategy’

We welcome the introduction of a draft access to information strategy, particularly as recent ICO strategic documents such as the ‘Information Rights Strategic Plan 2017-2021’ and the ‘Regulatory Action Policy’ primarily reflect a data protection perspective even though they apply to the full range of the ICO’s functions including FOI. We are extremely pleased to see access to information now being dealt with in its own terms.
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New report proposes extending NHS safety investigation secrecy

A new parliamentary report has been criticised by the Campaign for Freedom of Information and News Media Association for endorsing a proposal that will prevent a new NHS patient safety body from disclosing safety information under the Freedom of Information Act.

A draft government bill to establish the Health Service Investigations Body would also prevent it from disclosing information it holds in connection with any patient safety investigation. The parliamentary committee recommends extending this restriction to any information provided in order to promote patient safety, regardless of whether it relates to an investigation.
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Submission on NHS secrecy to Joint Committee

A Joint Committee of MPs and peers has been set up to consider the Draft Health Service Safety Investigations Bill. The bill establishes a new body called the Health Service Safety Investigations Body (HSSIB) to carry out investigations into safety concerns. It also makes provision for the HSSIB to accredit local NHS trusts to carry out their own investigations.

The Campaign is concerned by a prohibition on disclosure included in the draft bill. As it stands, the HSSIB and accredited NHS trusts would publish reports on their investigations into serious patient safety incidents. But they would be prohibited from making public any other information held in connection with the investigations. The prohibition would override the right of access under the Freedom of Information Act and – it is suggested – the subject access right under the Data Protection Act.

In a submission to the Committee, the Campaign says the reform would deprive the public of two important rights they have enjoyed for years.
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Andy Slaughter MP’s 2nd reading speech

The Freedom of Information (Extension) Bill was due to have its second reading on June 15 2018. The Bill, which was drafted with the assistance of the Campaign for Freedom of Information, was unfortunately not reached. A prolonged debate on the preceding bill consumed all the available Parliamentary time.

This is the speech that Andy Slaughter MP the bill’s promoter would have given had time permitted.
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Parliament to debate bill to bring contractors, housing associations and others under FOI

Information about public services provided by contractors and fire risks at housing associations would be made subject the Freedom of Information (FOI) Act under a private member’s bill introduced by Andy Slaughter the Hammersmith MP. His Freedom of Information (Extension) Bill is to be due for second reading debate in the Commons this Friday, June 15 2018.

At present, information held by contractors delivering public services is only available under FOI if the contract entitles the public authority concerned to that information from the contractor. If the contract is silent, the public has no right to it.

The bill, drafted by the Campaign for Freedom of Information, would bring all contractor-held information about the performance of the contract within the Act’s scope. It could be obtained by a request to the public authority, subject to the Act’s exemptions.
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