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News

Response to the ICO’s call for comments on its draft ‘Regulatory Action Policy’

The Information Commissioner’s Office has invited comments on a draft policy setting out its approach to taking action against those who have breached the legislation it enforces. The Campaign’s response states:

“Although the draft Regulatory Action Policy purports to address the ICO’s policy in relation to all the legislation it enforces, the focus on data protection, and nothing else, is overwhelming. The document gives the impression that all other issues, including freedom of information, have been squeezed off the ICO’s agenda altogether.
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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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Private nursing misconduct hearings part of a move that would conceal NHS safety problems

Proposals to avoid public misconduct hearings for nurses and midwives are part of a “pattern of moves to limit the public’s right to know about NHS safety problems”, says the Campaign for Freedom of Information.

The Campaign says that a new proposal by the Nursing and Midwifery Council (NMC) to do away with most public fitness to practise hearings echoes government proposals to keep evidence about safety incidents secret.

Under the NMC proposals, where a nurse or midwife admits to having made an error, the matter will be dealt with in private without the public hearing that now takes place [1]. Reasons for any decision will be published, but there will apparently be no published transcript. “The risk is that failings at a hospital – or by the NMC itself – will be obscured, undermining public confidence in the NHS” the Campaign says.

The same philosophy underpins Department of Health proposals for a new body to investigate significant NHS safety incidents [2]. The Health Service Safety Investigation Body would report on its investigations but be prohibited from revealing unpublished information in response to freedom of information (FOI) requests. The Department says this would allow staff to speak freely to investigators without fear of being unfairly blamed. But the Campaign’s director Maurice Frankel said: “the secrecy would not be limited to information provided by staff involved in safety incidents. It would apply to any information from any source obtained during an investigation, including information from the NHS trust itself, independent experts or a drug or medical device manufacturer. Even test results on equipment or anonymised accounts of previous incidents would be kept secret indefinitely.”

Only limited disclosures would be allowed, for example, to the police, regulatory bodies or other NHS bodies. Journalists or campaign groups would have to persuade the High Court to order disclosure of information which is currently available under FOI.

The Campaign says “the NMC proposals reflect the same disturbing philosophy: that patient safety is best served by addressing problems in private.”

Notes:

[1] The new NMC strategy is set out in a draft consultation paper to be discussed by the NMC board on 28 March 2018
https://www.nmc.org.uk/globalassets/sitedocuments/councilpapersanddocuments/council-2018/council-papers-march-2018.pdf

[2] ‘Draft Health Service Safety Investigations Bill’ published by the Department of Health in September 2017
https://www.gov.uk/government/publications/health-service-safety-investigations-bill

Revised Freedom of Information Code of Practice

The Campaign has responded to the Cabinet Office’s consultation on a draft revised code of practice under section 45 of the Freedom of Information Act. The revised code would replace the current one that was issued in November 2004, shortly before the Act came fully into force.

Although the draft revised code is said to provide guidance on ‘best practice’ under the Act we think it needs to go significantly further to justify that description. As it stands the proposed code:

  • does not fully reflect changes in the interpretation of the Act resulting from Upper Tribunal and court decisions
  • describes as ‘best practice’ some measures which are required under the Act, implying that these statutory requirements are optional
  • fails to properly explain the advice that should be provided when requests exceed the cost limit and how the Act’s provisions on vexatious requests should operate
  • is weaker in key respects that the 2004 version of the code it is intended to replace, omitting numerous helpful passages from it. The effect is to limit rather than extend the spread of good practice.

In the Campaign’s view the new code should be substantially improved before it is introduced.

FOI too slow to contribute to Brexit debate, says Campaign

By Elisa.rolle (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

The Freedom of Information Act (FOIA) operates too slowly to contribute to the Brexit debate,  according to the Campaign for Freedom ofInformation.

The Campaign’s director, Maurice Frankel, has submitted a witness statement to the High Court supporting an attempt to use the common law and Article 10 of the ECHR instead of FOIA to obtain government studies on Brexit. The statement says the FOI process is too slow to obtain them in time to inform public debate before the Brexit deadline. The UK is due to leave the EU at the end of March 2019.
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Queen’s Speech proposals will lead to “unnecessary increase in NHS secrecy”

A draft Bill set out in today’s Queen’s Speech will lead to an unnecessary layer of secrecy about investigations into patient deaths and injuries, says the Campaign for Freedom of Information.

The draft Patient Safety Bill will put the work of the newly formed Healthcare Safety Investigation Branch (HSIB), which investigates selected NHS safety incidents, on a statutory basis. The HSIB will be required to publish reports of its investigations, but will be prohibited by law from revealing any other information obtained during its investigations. FOI requests for such information will automatically be refused.
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Challenge to security bodies’ exclusion from FOI

The Campaign has joined ARTICLE 19 and the Access to Information Programme (Bulgaria) in a joint intervention in a European Court of Human Rights (ECtHR) case involving GCHQ. GCHQ, like other security bodies, is not covered by the UK FOI Act. Information which public authorities hold about, or which has been supplied by, security bodies is protected by an absolute exemption.

The case has been brought by Privacy International and follows a recent decision of the Grand Chamber of the ECtHR that Article 10 of the European Convention on Human Rights provides a right to information from public authorities. The right applies to information requested by someone acting in a ‘social watchdog’ role seeking to contribute to public debate on a matter of public interest. The joint intervention argues that the UK’s blanket ban on any FOI disclosure of any kind about the security services in all circumstances is disproportionate and so breaches Article 10. It includes an analysis by the Campaign of the position of security services under the FOI laws of 44 Council of Europe states (paragraphs 41-58).

Whistleblowers and journalists face prison for revealing information that could be obtained under FOI

 

 

 

 

 

New proposals by the Law Commission to reform the 1989 Official Secrets Act (OSA) could lead to the imprisonment of civil servants and journalists for disclosing information that would be available to anyone asking for it under the Freedom of Information Act, say the Campaign for Freedom of Information (CFOI) and ARTICLE 19.

The Law Commission is proposing to make it easier to secure convictions under the 1989 OSA by weakening the test for proving an offence. But the proposed weaker test would catch information that would have to be disclosed under the Freedom of Information (FOI) Act, say the CFOI and ARTICLE 19.

In a joint response to the Law Commission proposals, ARTICLE 19 and the CFOI are concerned that:

  • Whistleblowers and journalists could be convicted for revealing information about defence, international relations or law enforcement that is unlikely to cause harm
  • Leaking information that anyone could obtain by making an FOI request could be an offence
  • It would not be a defence to show that the information had already lawfully been made public under the FOI Act or otherwise – unless the information had also been ‘widely disseminated’
  • Someone revealing danger to the public, abuse of power or serious misconduct would not be able to argue that they acted in the public interest
  • Maximum prison sentences on conviction, currently 2 years, would be increased.

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